| Matter of McFadden v New York City Dept. of Correction |
| 2011 NY Slip Op 00763 [81 AD3d 1057] |
| February 10, 2011 |
| Appellate Division, Third Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| In the Matter of the Claim of Nedra McFadden,
Appellant, v New York City Department of Correction, Respondent. Workers' Compensation Board, Respondent. |
—[*1]
Michael A. Cardozo, Corporation Counsel, New York City (Elina Druker of counsel), for
New York City Department of Correction, respondent.
Peters, J.P. Appeal from a decision of the Workers' Compensation Board, filed October 6, 2009, which ruled that the employer is entitled to reimbursement for certain benefits paid to claimant.
Claimant, a correction officer, suffered a work-related injury to her right shoulder in 2002 that led to a schedule loss of use award. A Workers' Compensation Law Judge (hereinafter WCLJ) declined to grant the self-insured employer reimbursement out of the award for wages paid to claimant while she was absent from work, opining that the employer had failed to file a request for that relief (see Workers' Compensation Law § 25 [4] [a]). Upon review, the Workers' Compensation Board disagreed and awarded reimbursement in the amount of $39,172.17. Claimant now appeals.
We affirm. Claimant concedes that the employer filed a claim for reimbursement, but argues that the Board's separate determination as to the reimbursement amount is unsupported by substantial evidence in the record (see Matter of Monteleone v Town of N. Castle, 73 AD3d 1422, 1423 [2010]; Matter of Velji v Rural Farms Workers Opportunity, 93 AD2d 936, 937[*2][1983]). The record contains the previously established average weekly wage, however, as well as forms documenting the amount of time missed by claimant due to her injury and her salary.[FN*] Moreover, claimant was subject to a collective bargaining agreement that afforded her unlimited sick leave with pay, and no basis existed for reducing the reimbursement amount sought (see Matter of Monteleone v Town of N. Castle, 73 AD3d at 1423).
Lastly, the employer did not appeal from prior WCLJ decisions directing it to provide a new reimbursement request supported by specific documentation and ultimately precluding it from doing so following a prolonged delay. To the extent those earlier decisions conflict with the Board's determination here, we need only note that the Board is empowered to modify or rescind prior decisions "despite [a party's] failure to take an appeal from the final order" (Matter of Jansch v Sagamore Children's Fund, 302 AD2d 851, 853 [2003]; see Workers' Compensation Law § 123; § 150 [b]).
Spain, Rose, Kavanagh and Egan Jr., JJ., concur. Ordered that the decision is affirmed, without costs.