| Matter of Early v New York Tel. Co. |
| 2008 NY Slip Op 10245 [57 AD3d 1341] |
| December 31, 2008 |
| Appellate Division, Third Department |
| In the Matter of the Claim of John Early, Claimant, v New YorkTelephone Company, Presently Known as Verizon, Inc., et al., Respondents, and Special Fund forReopened Cases, Appellant. Workers' Compensation Board,Respondent. |
—[*1] Sullivan, Keenan, Oliver & Violando, Albany (John M. Oliver of counsel), for New YorkTelephone Company and another, respondents.
Malone Jr., J. Appeal from a decision of the Workers' Compensation Board, filed September 26,2007, [*2]which ruled that liability shifted to the Special Fund forReopened Cases pursuant to Workers' Compensation Law § 25-a.
In June 1992, claimant sustained a compensable injury to his right knee. Following surgery inAugust 1992 and again in December 1994, he received workers' compensation benefits. In January1996, a Workers' Compensation Law Judge (hereinafter WCLJ) granted claimant a 10% schedule lossof use award of his right leg and ordered that the self-insured employer be reimbursed for all wagespreviously paid to claimant. Claimant filed an application for review before the Workers' CompensationBoard with respect to that part of the decision ordering reimbursement at the full salary rate, asopposed to the workers' compensation rate. Due to the existence of other cases involving the samelegal issue, the Board rescinded the WCLJ's decision with respect thereto, restored claimant's case tothe trial calendar regarding the same, held the other issues in the case in abeyance and directed that alead case be selected by stipulation of the parties. The Board issued a decision in October 1999finding, based upon the lead case, that the WCLJ was correct in ruling that the employer was entitled toreimbursement for the full amount of wages paid to claimant.
In the meantime, claimant's physician filed a C-27 form requesting reopening of claimant's casebased upon a change in his medical condition and opined that claimant would ultimately require a totalknee replacement. As a result, the Board reopened claimant's case in December 1998. In response tothe Board's request for further medical documentation, claimant's physician submitted a C-4 formwhich, among other things, requested approval for certain injections and opined that claimant had a40% schedule loss of use of the right knee. In June 2000, the WCLJ issued a decision approving theinjections and indicating that no further action was planned.
In May 2002, the Board issued another decision on the issue of wage reimbursement based uponthis Court's decision in Matter of Staruch v New York Tel. Co. (277 AD2d 830, 833 [2000],lv dismissed and denied 96 NY2d 852 [2001]) involving review of the lead case. The Boardultimately rescinded, without prejudice, that part of the WCLJ's January 1996 decision finding that theemployer was entitled to full wage reimbursement and held the reimbursement amount in abeyancepending the employer's submission of further evidence. Following a further hearing and based upon theBoard's decision in ARC v Verizon New York, Inc., a new lead case, the WCLJ issued areserved decision in December 2004 ruling that the employer was only entitled to reimbursement at theworkers' compensation rate. Accordingly, the WCLJ directed that the employer allocate thereimbursement moneys held in abeyance and noted that no further action was planned. Both claimantand the employer sought Board review of this decision.[FN*][*3]
Claimant underwent surgery for a total knee replacement inJanuary 2005. In April 2005, the employer sought to reopen the case by filing a notice and a requestfor further action asserting, among other things, the applicability of Workers' Compensation Law§ 25-a. Following a hearing, the WCLJ ruled that liability had shifted to the Special Fund forReopened Cases pursuant to Workers' Compensation Law § 25-a and, accordingly, itdischarged the employer from further liability. The Board subsequently affirmed the WCLJ's decisionand found that there was a true closing of the case at the time of the WCLJ's December 2004 reserveddecision resolving the reimbursement issue. The Special Fund now appeals.
Initially, we note that the purpose of Workers' Compensation Law § 25-a "is to shift theliability for paying stale claims to the [Special] Fund" (Matter of Loiacono v Sears, Roebuck &Co., 230 AD2d 351, 353 [1997]). The statute provides, in relevant part, that "when an applicationfor compensation is made . . . after a lapse of seven years from the date of the injury [and]three years from the date of the last payment of compensation," an award of benefits shall be made"against the [S]pecial [F]und" (Workers' Compensation Law § 25-a [1]; see Matter of Bates v Finger Lakes TruckRental, 41 AD3d 957, 958-959 [2007]). The case must be closed and later reopened inorder for Workers' Compensation Law § 25-a to apply (see Matter of Casey v Hinkle IronWorks, 299 NY 382, 385 [1949]). Whether there has been a true closing of the case is a factualissue for the Board to resolve and its determination in this regard will be upheld if supported bysubstantial evidence (see Matter of Rodriguezv Greenfield Die Casting, 53 AD3d 728, 730 [2008]; Matter of Giemza v Town of Cambridge, 45 AD3d 1008, 1009 [2007]).
In the case at hand, claimant sustained his injury in June 1992 and the last payment ofcompensation was made in January 1996. The employer's application to reopen was made in April2005, more than seven years from the date of the injury and three years from the last payment ofcompensation, thus meeting the time requirements necessary to shift liability to the Special Fund underWorkers' Compensation Law § 25-a. While the Special Fund seeks to avoid liability byasserting that there was never a true closing of the case, we are not persuaded. The September 1998and January 2000 medical reports that it relies upon which indicated that claimant's condition hadworsened do not, under the circumstances presented here, establish that further proceedings werecontemplated after the WCLJ issued his December 2004 reserved decision. Significantly, there is noevidence that claimant requested further medical treatment or submitted a claim for an increasedschedule loss of use between the WCLJ's June 2000 decision approving the injections and the WCLJ'sDecember 2004 reserved decision resolving the reimbursement issue and closing the case. Accordingly,substantial evidence supports the Board's finding that the case was truly closed as of December 2004,and we decline to disturb its decision. We have considered the Special Fund's remaining contentionsand find them to be unavailing.
Cardona, P.J., Carpinello and Stein, JJ., concur. Ordered that the decision is affirmed, withoutcosts.
Footnote *: Notably, claimant and the employerultimately entered into a settlement agreement pursuant to Workers' Compensation Law § 32regarding the reimbursement issue.