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Employer Forfeited Challenge to Deposit

Employer Forfeited Challenge to Board Order to Pay Deposit to State Aggregate Fund:

 

 

A New York appellate court upheld an order by the Workers' Compensation Board compelling an employer to make a $341,123.64 deposit into the state aggregate trust fund to cover the cost of a worker's permanent total disability benefits from his Lyme disease.

 

Case: Bailey v. Ben Ciccone Inc., No. 518139, 08/07/2014, published.

 

Facts: Worrell Bailey suffered a tick bite while working in the woods and contracted Lyme disease.

 

When he began to experience upper body muscle weakness, he quit working. Bailey's employer accepted liability for a workers' compensation claim based on his Lyme disease.

 

Despite several courses of antibiotics, Bailey's progressive muscle weakness continued to worsen, and a workers' compensation law judge deemed him permanently and totally disabled in June 2009.

 

The Workers' Compensation Board upheld the judge's ruling, as did the Appellate Division's 3rd Department.

 

The board then directed Bailey's employer to make a deposit of $341,123.64 – representing the amount of unpaid benefits due to Bailey, as reduced to their present value – into the state aggregate trust fund.

 

The fund, established in 1935, assures payment of workers’ compensation in claims involving permanent partial disability, permanent total disability, the loss of major members and fatal injuries.

 

Bailey's employer appealed, arguing that the board erred by imposing a mandatory, rather than discretionary, deposit into the aggregate trust fund because Bailey was not classified with a statutory permanent total disability under the schedule provided in Workers' Compensation Law Section 15(1).

 

Analysis: The Appellate Division's 3rd Department said the employer's failure to raise this argument before the board meant that the employer had forfeited it on appeal.

 

Disposition: Affirmed.

 

To read the decision, click here.

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