Lehsten v. NACM-Upstate New York, 1999 N.Y. Int. 0069 (May 6, 1999).

WORKERS' COMPENSATION - STAY OF AWARD PENDING APPEAL

ISSUE & DISPOSITION

Issue

Whether a Workers' Compensation award is stayed by an appeal to the full board for review.

Disposition

No. Appealing an award to the appellate division does not result in a stay whether or not there is also a request for review by the full board.

SUMMARY

Betty Lou Lehsten twisted her back getting out of a chair at her job with a collection agency and received $2,929.42 in workers' compensation benefits from a panel of the Workers' Compensation Board.

Lehsten's employer and its insurance company refused to pay the award while they appealed the decision to the full membership of the Workers' Compensation Board. As a result, the Worker's Compensation Board fined the company for delaying payment.

The Appellate Division, Third Department, upheld the award but vacated the penalty, stating that the language of the Workers' Compensation Law "plainly states that a penalty cannot be imposed where an employer has applied to the board for review...".

Both Lehsten and the Workers' Compensation Board ask the Court of Appeals to reverse the order of the Appellate Division and reinstate the Board's decision, including the fine, arguing that when a decision of a Worker Compensation Board panel is unanimous, an appeal to the full board for review does not stay payment of the award.

The Court of Appeals agreed and did so. It noted that the Legislature had amended the law in 1970 so as to foreclose any stay of payment on appeal to the Appellate Division. Interpreting the statute to allow a party to obtain a stay by the simple expedient of filing for another round of discretionary administrative review would be inconsistent with the aim of that change.