IN RE: the Claim of Richard WHITMORE

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: the Claim of Richard WHITMORE, Appellant, v. CARRIER CORPORATION et al., Respondents. Workers' Compensation Board, Respondent.

Decided: April 24, 2008

Before:  CARDONA, P.J., MERCURE, SPAIN, LAHTINEN and KAVANAGH, JJ. Christine Ann Scofield, Syracuse, for appellant. Wolff, Goodrich & Goldman, L.L.P., Syracuse (Robert E. Geyer Jr. of counsel), for Carrier Corporation and another, respondents.

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 A.D.3d 739, 740, 785 N.Y.S.2d 722 [2004];  Matter of Stabak v. ISS Intl., 248 A.D.2d 814, 670 N.Y.S.2d 242 [1998], lv. dismissed and denied 92 N.Y.2d 891, 678 N.Y.S.2d 590, 700 N.E.2d 1226 [1998] ).

ORDERED that the appeal is dismissed, as untimely, without costs.



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