It May Be an Abuse of Discretion for the Board to Refuse to Review an Untimely Application Raising a Jurisdictional Issue/Board May Be Barred from Reopening a Closed Claim More than Seven Years After the Accident

The Third Department determined the Workers’ Compensation Board should have considered the employer’s untimely application for review because the employer raised a jurisdictional issue. The court noted that the Board may barred from reopening closed claims after more than seven years have elapsed since the accident:

“The general rule is that lack of jurisdiction to render a judgment or determination may be asserted at any time . . .” … .  Accordingly, “[w]hile the Board enjoys broad discretion to reject a late application for review,” its refusal to consider an untimely challenge to its jurisdiction may constitute an abuse of discretion … .

While the Board generally retains continuing jurisdiction over workers’ compensation claims, it is barred from reopening a claim “that has been . . .  disposed of without an award after the parties in interest have been given due notice of hearing or hearings and opportunity to be heard and for which no determination was made on the merits, [where there has been] a lapse of seven years from the date of the accident” (Workers’ Compensation Law § 123;…). Workers’ Compensation Law § 123 accordingly acts to “prevent a brand new attempt to prove up a stale claim” …, and deprives the Board of “power and jurisdiction” over such an attempt (Workers’ Compensation Law § 123…).  Given the age of the claim here and the fact that it was marked closed in 1995, the employer plausibly argues that the Board lacked jurisdiction to reopen the present claim.  Matter of VanAusdle, v NYC Police Department, 515592, 3rd Dept 12-19-13