Calendar Date: May 1, 2018Before: Garry, P.J., McCarthy, Devine, Aarons and Pritzker, JJ.__________Law Offices of Lois Law Firm, New York City (Jeremy Janisof counsel), for appellants.Law Firm of Alex C. Dell, PLLC, Albany (Courtney E.Holbrook of counsel), for Richard Love, respondent.Barbara D. Underwood, Attorney General, New York City(Steven Segall of counsel), for Workers’ Compensation Board,respondent.__________McCarthy, J.Appeal from a decision of the Workers’ Compensation Board,filed January 3, 2017, which ruled, among other things, that theemployer and its workers’ compensation carrier waived theirdefenses to the claim.Claimant, the employer’s police chief, sought workers’compensation benefits in connection with injuries sustained in amotor vehicle accident. On April 22, 2016, the employer and itsworkers compensation carrier (hereinafter collectively referredto as the carrier) controverted the claim by filing a prehearingconference statement, which it served on claimant and a law firmthat did not represent claimant. On the same day, claimant’scounsel filed with the Workers’ Compensation Board, and served onthe carrier, an attorney/representative certification indicatingthat he had been retained by claimant. A notice of a scheduledprehearing conference date was sent to the parties, whichindicated that a copy was sent to claimant’s counsel and includedits address. The carrier filed an amended prehearing conferencestatement a day before the conference hearing, again servingclaimant and a law firm that did not represent claimant.Ultimately, the Board ruled, among other things, that the carrierwaived its defenses to the claim because it did not serve aprehearing conference statement on claimant’s counsel. Thecarrier appeals.We affirm. Workers’ Compensation Law § 25 (2-a) (d)requires that a prehearing conference statement be filed 10 daysprior to the conference — which directive is also set forth in 12NYCRR 300.38 (f) (1) and in the notice of prehearing conferencesent to the parties by the Board. “Failure by the insurancecarrier to timely serve upon all other parties . . . the[prehearing] conference statement . . . shall result in a waiverof defenses to the claim” (12 NYCRR 300.38 [f] [4]; see generallyMatter of Pacatte v SUNY Cobleskill, 87 AD3d 1262, 1262 [2011]).Here, not only was the amended prehearing conference statementnot filed within the requisite statutory time period, the carrieralso did not serve claimant’s counsel with either prehearingconference statement nor attempt to correct its erroneous serviceupon the wrong law firm. We find unpersuasive the carrier’sassertion that, because there was no prejudice to claimant, itsfailure to properly serve claimant’s counsel should be excused.Such conduct can only be excused where the legal representativeof the insurance carrier submits an affidavit that the error wasdue to good cause and that the insurance carrier exercised goodfaith and due diligence (see 12 NYCRR 300.38 [f] [4]). Here, nosuch affidavit was submitted. In view of the foregoing, we findno reason to disturb the Board’s finding that the carrier waivedits defenses to the claim by failing to properly serve claimant’scounsel.Garry, P.J., Devine, Aarons and Pritzker, JJ., concur.ORDERED that the decision is affirmed, without costs.ENTER:Robert D. MaybergerClerk of the Court
