Claim of Alund v. Malt River Brewing Co.

Peters, J. Appeal from a decision of the Workers’ Compensation Board, filed September 8, 2003, which established claimant’s average weekly wage. Claimant was injured on October 28, 1999. In August 2000, her claim for workers’ compensation benefits was established for a work-related injury and her average weekly wage was tentatively established as $170.49. By a decision filed July 26, 2001, the Workers’ Compensation Law Judge (hereinafter [747] WCLJ), after conducting numerous hearings on the issue, permanently established claimant’s average weekly wage as $170.49. Thereafter, the WCLJ apparently reversed her decision upon claimant’s request and established claimant’s average weekly wage as $170.49 “without prejudice.” Upon an appeal by the employer and its workers’ compensation carrier, the Workers’ Compensation Board held that the WCLJ had improperly rescinded the July 26, 2001 determination that claimant’s average weekly wage was permanently established as $170.49 and referred the matter back to the district office. It is from this decision that claimant now appeals. However, while this appeal was pending, by a decision filed November 3, 2003, the Board closed claimant’s case after determining that claimant had voluntarily withdrawn from the labor market in February 2000 — six months prior to the date that her case was initially established. Insofar as the November 2003 decision effectively rescinded the September 2003 decision from which claimant currently appeals, and considering that claimant failed to appeal the November 2003 decision, the issue of her average weekly wage is moot (see Matter of Weygant v Walter Kroll, 286 AD2d 818 [2001]; Matter of Bathrick v New York State Dept. of Transp., 278 AD2d 704, 705 [2000]; Matter of Supinski v Bankers Trust Co., 235 AD2d 844, 844-845 [1997]; Matter of Bock v Burns, Van Kirk, Greene & Kafer, 81 AD2d 684 [1981]). Cardona, EJ., Mercure, Spain and Carpinello, JJ., concur. Ordered that the appeal is dismissed, as moot, without costs.