Calendar Date: March 30, 2017
& Associates, PC, New York City (Benjamin B. Xue of
counsel), for appellant.
T. Schneiderman, Attorney General, New York City (Marjorie S.
Leff of counsel), for Workers' Compensation Board,
Before: Peters, P.J., Garry, Devine, Mulvey and Aarons, JJ.
MEMORANDUM AND ORDER
from a decision of the Workers' Compensation Board, filed
October 8, 2015, which, among other things, denied the
employer's request to reopen claimant's workers'
a bus driver, was involved in a 2007 bus accident in
Pennsylvania. He successfully applied for workers'
compensation benefits and asserted that "OK/Five Star
Travel" was his employer. Five Star Travel of NY Inc.
(hereinafter Five Star) was served with notices at various
addresses, including one determined by an investigator
dispatched to look into the situation, but the notices
contained in the record were returned as undeliverable. Five
Star did not appear and, by 2008, the Workers'
Compensation Board found that Five Star was claimant's
employer. In 2009, a Workers' Compensation Law Judge
(hereinafter WCLJ) determined that Five Star was uninsured at
the time of claimant's accident and, as such, penalized
Five Star and held it liable for all awards and assessments
made under the claim (see Workers' Compensation
Law §§ 26-a, 50). Claimant and the Uninsured
Employers' Fund then negotiated a settlement agreement
pursuant to Workers' Compensation Law § 32 which, in
October 2011, the Board approved. In May 2015, Five Star
sought to reopen the claim and to revisit the Board decision
approving the settlement agreement. The Board denied the
application and this appeal ensued.
affirm. Regulatory provisions controlling applications for
Board review of WCLJ decisions (see 12 NYCRR 300.13)
"do not restrict the Board's power to reopen a case
in the interest of justice" (Matter of Naylon v Erie
County Highway Dept., 14 A.D.3d 932, 933 ;
see Workers' Compensation Law § 123; 12
NYCRR 300.14 [a] ). Nevertheless, the Board found that no
material evidence was produced by Five Star that was not
previously available. As such, "the Board acted well
within its discretion in refusing to consider the evidence
and in denying review" (Matter of Druziak v Town of
Amsterdam, Cranesville Fire Dept., 209 A.D.2d 870,
871-872 , lv denied 85 N.Y.2d 809');">85 N.Y.2d 809 ;
see 12 NYCRR 300.14 [a] ; [b]; Matter of
Burris v Olcott, 95 A.D.3d 1522, 1523 ). The
Board's determination is reinforced by its finding that
Five Star's application to reopen was
"untimely" (see 12 NYCRR 300.14 [b];
Matter of Barone v Interstate Maintenance Corp., 73
A.D.3d 1302, 1303 ). 
Board was also right to decline to revisit its prior approval
of the Workers' Compensation Law § 32 settlement
agreement since, "[a]lthough the Board has continuing
jurisdiction over its cases pursuant to Workers'
Compensation Law § 123, ... 'neither the Board nor
this Court may review a waiver agreement once it has been
approved'" (Matter of Palmer v Special Metals
Corp., 42 A.D.3d 833, 834 , quoting Matter of
Drummond v Desmond, 295 A.D.2d 711, 714 , lv
denied 98 N.Y.2d 615');">98 N.Y.2d 615 ).
Peters, P.J., Garry, Mulvey and Aarons, JJ., concur.
that the decision is affirmed, without costs.
 The Board questioned Five Star's
assertion that it was unaware of the proceedings in the
claim, pointing to a May 2008 WCLJ decision holding that
jurisdiction had been obtained over Five Star and determining
that Five Star had "no valid reason for failing to
appear at the hearings held in this matter." In any
event, we note that the president of Five Star acknowledged
that he had been ...