Whitmore v. Carrier Corp.

Appellate Division of the Supreme Court of New York

Whitmore v. Carrier Corp.

50 A.D.3d 1404, 857 N.Y.S.2d 286

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 24, 2008

StatusPublished

Cited by1 cases

This text of 50 A.D.3d 1404 (Whitmore v. Carrier Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Whitmore v. Carrier Corp., 50 A.D.3d 1404, 857 N.Y.S.2d 286 (N.Y. Ct. App. 2008).

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Opinion

Cardona, P.J.

Appeal from a decision of the Workers’ Compensation Board, filed April 10, 2006, which ruled that claimant does not have causally related reduced earnings.

Claimant sustained a work-related injury to his back in November 1999. Claimant returned to work in a light-duty position until August 2002, at which time his congestive heart condition forced him to cease working altogether. Claimant was found to have a permanent marked partial disability with regard to his back as of October 14, 2002 and contended that he was entitled to wage loss benefits as of that date. A Workers’ Compensation Law Judge disagreed, finding that claimant’s reduction in earning capacity was due to his heart condition and, as such, was unrelated to his compensable disability. Upon review, a panel of the Workers’ Compensation Board affirmed, prompting this appeal.

The Board’s decision was filed on April 10, 2006 and there is nothing in the record to suggest that claimant did not receive timely notice thereof. To the contrary, counsel for claimant concedes that the May 24, 2006 notice of appeal “was submitted late.” Under such circumstances, the instant appeal is untimely and must be dismissed (see Workers’ Compensation Law § 23; Matter of Belfiore v University of Rochester, 13 AD3d 739, 740 [2004]; Matter of Stabak v ISS Inti, 248 AD2d 814 [1998], lv dismissed and denied 92 NY2d 891 [1998]).

Mercure, Spain, Lahtinen and Kavanagh, JJ., concur. Ordered that the appeal is dismissed, as untimely, without costs.

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Cardona, P.J.

Appeal from a decision of the Workers’ Compensation Board, filed April 10, 2006, which ruled that claimant does not have causally related reduced earnings.

Claimant sustained a work-related injury to his back in November 1999. Claimant returned to work in a light-duty position until August 2002, at which time his congestive heart condition forced him to cease working altogether. Claimant was found to have a permanent marked partial disability with regard to his back as of October 14, 2002 and contended that he was entitled to wage loss benefits as of that date. A Workers’ Compensation Law Judge disagreed, finding that claimant’s reduction in earning capacity was due to his heart condition and, as such, was unrelated to his compensable disability. Upon review, a panel of the Workers’ Compensation Board affirmed, prompting this appeal.

The Board’s decision was filed on April 10, 2006 and there is nothing in the record to suggest that claimant did not receive timely notice thereof. To the contrary, counsel for claimant concedes that the May 24, 2006 notice of appeal “was submitted late.” Under such circumstances, the instant appeal is untimely and must be dismissed (see Workers’ Compensation Law § 23; Matter of Belfiore v University of Rochester, 13 AD3d 739, 740 [2004]; Matter of Stabak v ISS Inti, 248 AD2d 814 [1998], lv dismissed and denied 92 NY2d 891 [1998]).

Mercure, Spain, Lahtinen and Kavanagh, JJ., concur. Ordered that the appeal is dismissed, as untimely, without costs.

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Bluebook (online)

50 A.D.3d 1404, 857 N.Y.S.2d 286, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitmore-v-carrier-corp-nyappdiv-2008.

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