IN RE: the Claim of Henry G. Lopez MENDEZ (2022)

MEMORANDUM AND ORDER

Appeal from a decision of the Workers’ Compensation Board, filed February 19, 2021, which ruled that the employer's workers’ compensation carrier was responsible for claimant's claim.

On July 31, 2018, claimant was severely injured when he fell from scaffolding while working for the employer.  Following the filing of his claim for workers’ compensation benefits, a hearing was held to determine whether the employer's workers’ compensation carrier had effectively canceled the employer's policy prior to the accident due to the nonpayment of premiums pursuant to Workers’ Compensation Law § 54(5).  A Workers’ Compensation Law Judge (hereinafter WCLJ) determined that the carrier had effectively canceled the employer's policy prior to the date of the accident and the carrier was discharged.  In a subsequent decision, the WCLJ further determined, among other things, that the employer was uninsured at the time of the accident.  In a decision filed on March 17, 2020, a panel of the Workers’ Compensation Board affirmed the WCLJ's decisions and the Uninsured Employer's Fund applied for reconsideration and/or full Board review.  Full Board review was granted, and the full Board rescinded the Board panel's March 2020 decision and directed that “the case be referred to the Board panel for further consideration.”  Consistent with that directive, the Board panel — by decision filed February 19, 2021 — found that the carrier had failed to effectively cancel the employer's policy and, therefore, the carrier was the liable carrier for the employer at the time of claimant's accident.  The carrier appeals.

We affirm.  Initially, we reject the carrier's contention that the Board panel improperly reversed its prior decision in the absence of new evidence.  Although the carrier relies on (Matter of Charles A. Field Delivery Serv. (Roberts), 66 N.Y.2d 516, 498 N.Y.S.2d 111, 488 N.E.2d 1223 [1985]), that case “requires an agency to conform to its precedent in deciding other cases which share factual similarity” but “does not apply to the situation where the Board is expressly authorized, on full Board review, to rescind or otherwise modify a Panel decision” (Matter of Gullo v. Southern Erie Clinical Servs., 258 A.D.2d 689, 691, 687 N.Y.S.2d 440 [3d Dept. 1999];  see Workers’ Compensation Law §§ 23, 123).

Turning to the merits, “[t]he requirements for the cancellation of workers’ compensation insurance coverage must be strictly observed” (Matter of Case v. State Ins. Fund, 72 N.Y.2d 992, 993, 534 N.Y.S.2d 368, 530 N.E.2d 1288 [1988];  accord Matter of Osorio v. M & L Express, Inc., 155 A.D.3d 1167, 1168, 63 N.Y.S.3d 145 [3d Dept. 2017]).  As relevant here, “[w]hen cancellation is due to non-payment of premiums and assessments, such cancellation shall not be effective until at least [10] days after a notice of cancellation of such contract, on a date specified in such notice, shall be filed in the office of the chair and also served on the employer” (Workers’ Compensation Law § 54[5][a]).  Further, “[s]uch notice shall be served on the employer by delivering it to him, her or it or by sending it by mail, by certified or registered letter, return receipt requested, addressed to the employer at his, her or its last known place of business” (Workers’ Compensation Law § 54[5][a]).  “The carrier has the burden of establishing its compliance in regard to notice of cancellation of coverage” and “[a] reviewing court will not substitute its judgment for that of the Board if the Board's conclusion is one that ‘a reasonable mind might accept as adequate’ ” (Matter of Osorio v. M & L Express, Inc., 155 A.D.3d at 1168, 63 N.Y.S.3d 145, quoting Matter of Kopec v. Buffalo Brake Beam–Acme Steel & Malleable Iron Works, 304 N.Y. 65, 71, 106 N.E.2d 12 [1952];  see Matter of Scuderi v. Mazzco Enters., 139 A.D.3d 1138, 1139, 31 N.Y.S.3d 293 [3d Dept. 2016]).

To that end, the carrier produced a letter that provided notice of cancellation of the policy for non-payment addressed to the employer dated July 13, 2018, with the cancellation being effective July 30, 2018.¹  The letter did not indicate that it was sent certified mail, return receipt requested.  The carrier further produced a window envelope that it maintains was used to mail the notice of cancellation to the employer.  The envelope has a certified mail sticker attached that has a tracking number and indicates that it was mailed by the carrier from its Buffalo office on July 13, 2018.  The envelope does not indicate that it was sent return receipt requested and it does not contain the employer's name or address, or any recipient's name or address.  The carrier also submitted two U.S. Postal Service manifests as evidence of its compliance with the statutory requirements.  However, one manifest merely confirms that one piece of mail was sent by the carrier to the employer's zip code on July 13, 2018, with no reference to the employer or its address, and the other manifest indicates that the envelope in question was mailed by the carrier to an unidentified address in the employer's town and zip code on July 13, 2018 and that, after an unsuccessful delivery attempt was made on July 16, 2018, the envelope was eventually returned to the carrier as unclaimed on August 16, 2018.  Although the carrier's regional underwriter manager testified that the envelope in question contained the notice of cancellation and that “[i]t would have been sent certified mail return receipt” to the employer, he also testified that he does not work in the Buffalo office and that he did not personally place the notice of cancellation in the envelope.²

“It is well settled that the Board has broad authority to resolve factual issues based on credibility of witnesses and draw any reasonable inference from the evidence in the record” (Matter of Salas v. Tom Cat Bakery, Inc., 193 A.D.3d 1225, 1227, 147 N.Y.S.3d 154 [3d Dept. 2021] [internal quotation marks and citations omitted];  accord Matter of Czachurski v. PAL Envtl., 189 A.D.3d 1866, 1867, 138 N.Y.S.3d 236 [3d Dept. 2020]).  Under these circumstances, we find that substantial evidence supports the Board's determination that the proof submitted by the carrier was insufficient to establish a nexus between its cancellation notice and its proof of mailing so as to satisfy the statutory requirements for canceling the employer's policy (see Matter of Laird v. All Pro Air Delivery, Inc., 45 A.D.3d 924, 925, 845 N.Y.S.2d 493 [3d Dept. 2007];  Matter of Russell v. Linens Plus, Linen Mill Outlet, 188 A.D.2d 748, 749, 591 N.Y.S.2d 261 [3d Dept. 1992];  Matter of Bitterman v. Friscos Rest., Inc., 91 A.D.2d 810, 810, 458 N.Y.S.2d 43 [3d Dept. 1982];  compare Matter of Osorio v. M & L Express, Inc., 155 A.D.3d at 1168–1169, 63 N.Y.S.3d 145;  Matter of Craig v. Leatherstocking Healthcare, LLC, 139 A.D.3d 1217, 1218–1219, 31 N.Y.S.3d 654 [3d Dept. 2016]).  The carrier's remaining contentions, to the extent not specifically addressed, have been considered and found to be lacking in merit.

ORDERED that the decision is affirmed, without costs.

FOOTNOTES

1.   The employer's owner testified that he was not informed that the policy had been cancelled until a month after the accident.

2.   Contrary to the carrier's contention, this proof was insufficient to establish office practice and procedure so as to invoke the presumption of regularity (see Elia v. Highland Cent. Sch. Dist., 78 A.D.3d 1265, 1267, 909 N.Y.S.2d 836 [3d Dept. 2010];  Matter of Sarlo v. Antona Trucking Co., 90 A.D.2d 611, 611, 456 N.Y.S.2d 169 [3d Dept. 1982]).

McShan, J.

Garry, P.J., Egan Jr., Clark and Fisher, JJ., concur.