Matter of Faello v Federal Express
2006 NY Slip Op 08010 [34 AD3d 942]
November 9, 2006
Appellate Division, Third Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, January 17, 2007


In the Matter of the Claim of Mark Faello, Appellant, v Federal Express, Respondent. Workers' Compensation Board, Respondent.

[*1]

Crew III, J.P. Appeal from a decision of the Workers' Compensation Board, filed June 3, 2005, which ruled that claimant's application for review was not timely filed.

Claimant alleged that he sustained a work-related injury after he purportedly was assaulted by a security officer at his place of employment. Following a hearing on the disputed issues of accident, notice and causal relationship, a Workers' Compensation Law Judge found that the physical contact to which claimant attributed his injuries was not an assault and, hence, did not result in a compensable injury. Accordingly, claimant's application was disallowed. Claimant thereafter filed an application for review by the Workers' Compensation Board, which claimant served upon the self-insured employer's claims manager but not the employer itself. Finding that the employer was not served with the application for Board review, a Board panel denied claimant's application and closed the claim. This appeal by claimant ensued.

We affirm. Claimant does not dispute that he failed to serve the self-insured employer, arguing instead that service upon the employer's representative was sufficient. The relevant [*2]regulation makes clear, however, that the application for Board review must be served upon all parties in interest to the proceeding (see 12 NYCRR 300.13 [a]). As the self-insured employer plainly has a manifest interest in the underlying proceeding, the Board is bound by the service requirements of 12 NYCRR 300.13 (a) (see Matter of Vukel v New York Water & Sewer Mains, 94 NY2d 494, 497 [2000]). Accordingly, the Board panel's denial of claimant's application for review was entirely proper.

Carpinello, Rose, Lahtinen and Kane, JJ., concur. Ordered that the decision is affirmed, without costs.