Matter of Jones v Burrell Orchards, Inc. (2020 NY Slip Op 03157) Matter of Jones v Burrell Orchards, Inc. 2020 NY Slip Op 03157 Decided on June 4, 2020 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: June 4, 2020 528311 [*1]In the Matter of the Claim of Paulette Jones, Individually and as Widow of Roy Jones, Decedent, Appellant, vBurrell Orchards, Inc., et al., Respondents. Workers' Compensation Board, Respondent. Calendar Date: May 21, 2020 Before: Egan Jr., J.P., Mulvey, Aarons, Pritzker and Colangelo, JJ. Law Firm of Mary J. Mraz, Albany (Mary J. Mraz of counsel), for appellant. Hamberger & Weiss LLP, Rochester (Joseph P. DeCoursey of counsel), for Burrell Orchards, Inc. and another, respondents. Colangelo, J. Appeal from a decision of the Workers' Compensation Board, filed October 31, 2018, which, among other things, denied claimant's request to reopen a prior decision. In 1996, Roy Jones (hereinafter decedent), a farmer, sustained serious injuries when he fell off a ladder while picking apples and landed on the ground. Decedent filed a claim for workers' compensation benefits (hereinafter the injury claim), which was not controverted by the employer and its workers' compensation carrier (hereinafter collectively referred to as the carrier), alleging that he was paralyzed from the waist down. Decedent's injury claim was subsequently established for a C7-T1 fracture with a spinal cord injury, causing paralysis of the lower extremities and a neurogenic bladder. In a 1999 amended decision, a Workers' Compensation Law Judge (hereinafter WCLJ) classified decedent with a permanent total disability, continued benefits based upon the average weekly wage amount that had been previously set and marked the injury claim for no further action as all then-present issues were found to be resolved. The carrier continued to pay awards until decedent's death on May 27, 2017, at which time the carrier suspended benefits. Following decedent's death, claimant, decedent's surviving spouse, filed a claim for death benefits (hereinafter the death claim), which was established without objection from the carrier at an April 2018 hearing. During that hearing, claimant requested an upward modification of the average weekly wage that was previously set in 1997 in the underlying injury claim, and the carrier raised the defense of laches, claiming, among other things, that such request was untimely. The WCLJ denied claimant's request to increase the average weekly wage in the injury claim, and claimant sought administrative review requesting that the injury claim be reopened pursuant to Workers' Compensation Law §§ 22 and 123 to increase the average weekly wage and to address the issue of reimbursement for home health care services that claimant had provided to decedent during his lifetime. Both claimant and the carrier also filed applications for Board review (RB-89 form) in the death claim. In an October 2018 decision, the Workers' Compensation Board denied claimant's application to reopen, finding that claimant's requests were ...
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