State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: May 12, 2016 521600
________________________________
In the Matter of the Claim of
NERISSA CRAIG,
Claimant,
v
LEATHERSTOCKING HEALTHCARE,
LLC, et al.,
Respondents,
and MEMORANDUM AND ORDER
WESCO INSURANCE COMPANY, Care
of AM TRUST NORTH AMERICA,
Appellant.
WORKERS' COMPENSATION BOARD,
Respondent.
________________________________
Calendar Date: March 24, 2016
Before: McCarthy, J.P., Egan Jr., Rose, Devine and Clark, JJ.
__________
Gitto & Niefer, LLP, Binghamton (Jason M. Carlton of
counsel), for appellant.
Sullivan Keenan Oliver & Violando LLP, Albany (Michael J.
Keenan of counsel), for Leatherstocking Healthcare LLC,
respondent.
Uninsured Employers' Fund, Schenectady (Victoria Plotsky of
counsel), for Uninsured Employers' Fund, respondent.
__________
-2- 521600
Clark, J.
Appeal from a decision of the Workers' Compensation Board,
filed December 29, 2014, which ruled that the employer's workers'
compensation carrier was responsible for claimant's claim.
Claimant filed a claim for workers' compensation benefits
alleging that she sustained a work-related injury to her back in
May 2012. The employer's alleged workers' compensation carrier
controverted coverage on the basis that it had canceled the
employer's policy in January 2012 for nonpayment of premiums.
Following a hearing, a Workers' Compensation Law Judge determined
that the carrier's cancellation of the policy was without effect
because it had failed to strictly comply with the notice
requirements of Workers' Compensation Law § 54 (5) and that,
therefore, its coverage of the employer continued through the
date of claimant's injury. The Workers' Compensation Board
affirmed, prompting this appeal.
To effectuate the cancellation of a workers' compensation
insurance policy, a carrier must strictly comply with the notice
requirements of Workers' Compensation Law § 54 (5) (see Matter of
Case v State Ins. Fund, 72 NY2d 992, 993 [1988]; Matter of Estes
v Metropolitan Warehouse, Inc., 50 AD3d 1341, 1342 [2008]; Matter
of Rue v Northeast Timber Erectors, 289 AD2d 787, 788 [2001], lv
dismissed 98 NY2d 671 [2002], lv denied 99 NY2d 503 [2002]). As
relevant here, Workers' Compensation Law § 54 (5) requires a
workers' compensation carrier to serve notice of cancellation of
an insurance contract upon an employer "by delivering it to him,
her or it or by sending it by mail, by certified or registered
letter, return receipt requested, addressed to the employer at
his, her or its last known place of business." To establish
compliance with the statute, the carrier is not required to
produce the return receipt; rather, the carrier need only
demonstrate that it requested a return receipt (see Matter of Rue
v Northeast Timber Erectors, 289 AD2d at 789; Matter of Russell v
Linens Plus, Linen Mill Outlet, 188 AD2d 748, 749 [1992]; Matter
of Muszynski v Puricelli Masonry & Concrete, 92 AD2d 666, 667
[1983]).
-3- 521600
At the hearing, the carrier produced the notice of
cancellation that it allegedly sent to the employer, which
indicated an effective cancellation date of February 9, 2012, a
mailing manifest showing that the carrier paid $4.40 to send an
article of mail to the employer in Herkimer, New York – $1.15 of
which was required to send the article by "ERR" – and a United
States Postal Service "[t]rack and [c]onfirm" notice
demonstrating that that same article of mail was delivered to an
address in Herkimer, New York by first class mail on January 30,
2012. The carrier also submitted a Workers' Compensation Board
investigator's report stating, among other things, that the Board
had received notice of cancellation of the employer's policy on
January 30, 2012. In addition, Christopher Coons, an underwriter
for the carrier, testified that the carrier sent the notice of
cancellation to the employer by certified mail, return receipt
requested, and that the mailing manifest and the "[t]rack and
[c]onfirm" notice demonstrated that the notice of cancellation
was mailed and delivered to the employer. He explained that the
carrier's practice was to submit its mailing requests
electronically, including those sent by certified mail, return
receipt requested, and that, as a result, it would not have
received a physical return receipt. Contrary to the Board's
conclusion, Coons' uncontroverted testimony and the supporting
documentary evidence was sufficient to demonstrate that the
carrier complied with the notice requirements of Workers'
Compensation Law § 54 (5) and effectively canceled the employer's
policy in February 2012 (compare Matter of Russell v Linens Plus,
Linen Mill Outlet, 188 AD2d at 749; Matter of Bitterman v Friscos
Rest., 91 AD2d 810, 810 [1982]). Thus, the Board's determination
that the carrier continued to cover the employer through the date
of claimant's injury in May 2012 is not supported by substantial
evidence.
In light of our determination, we need not reach the
remaining contentions raised by the carrier.
McCarthy, J.P., Egan Jr., Rose and Devine, JJ., concur.
-4- 521600
ORDERED that the decision is reversed, without costs, and
matter remitted to the Workers' Compensation Board for further
proceedings not inconsistent with this Court's decision.
ENTER:
Robert D. Mayberger
Clerk of the Court