| Matter of Cagle v Judge Motor Corp. |
| 2009 NY Slip Op 01558 [60 AD3d 1118] |
| March 5, 2009 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Kim M. Cagle, as Administrator ofthe Estate of John R. Cagle, Deceased, Appellant, v Judge Motor Corporation et al.,Respondents. Workers' Compensation Board, Respondent. |
—[*1] Hamberger & Weiss, Rochester (Joseph P. DeCoursey of counsel), for Judge MotorCorporation and another, respondents.
Lahtinen, J. Appeals (1) from a decision of the Workers' Compensation Board, filed October1, 2007, which denied claimant's request to reopen two cases seeking workers' compensationbenefits, and (2) from two decisions of said Board, filed July 24, 2008, which denied claimant'srequest for reconsideration or full Board review.
Decedent filed a claim for workers' compensation benefits after injuring his back in 1988(hereinafter the first claim) and, before that case was resolved, he died from ventricularfibrillation in October 1990. Thereafter, a consequential death claim was added to the first claim,but a Workers' Compensation Law Judge found no medical evidence of causally related deathand closed that case in June 1991. In September 1993, decedent's estate filed another claimalleging that decedent's death was caused by occupational stress (hereinafter the second claim).The second claim was eventually disallowed by the Workers' Compensation Board astime-barred pursuant to Workers' Compensation Law § 28, and we affirmed that decision(Matter of Cagle v White Auto Parts, 297 AD2d 897 [2002] [hereinafter CagleI]). In 2003, claimant (one [*2]of decedent's daughters actingon behalf of his estate) requested that the first claim be reopened based on newly discoveredevidence in the form of an updated doctor's report. This request was denied by the Board asuntimely under Workers' Compensation Law § 123 and, on appeal, we affirmed (Matter of Cagle v Judge Motor Corp.,31 AD3d 1016 [2006], lv dismissed 7 NY3d 922 [2006] [hereinafter CagleII]).
In 2007, claimant requested that both claims be reopened based upon alleged further newevidence. The new evidence included a prescription drug benefit card sent by the State InsuranceFund (hereinafter SIF) in February 2007 to decedent (who had then been deceased for over 16years). Claimant contended that the prescription card indicated that SIF was furnishing medicalservices that constituted an advanced payment of compensation, thereby waiving the timeconstraints of Workers' Compensation Law §§ 28 and 123. SIF responded that thecard, which referenced decedent's back injury claim, had been sent in error and, in any event,could not be considered an advanced payment since it was impossible for decedent to use thecard. The Board, noting that claimant's request was filed well beyond seven years from the dateof accident or death, found that, pursuant to Workers' Compensation Law § 123, it lackedjurisdiction to reopen the claims and, accordingly, denied claimant's request to reopen as well asher later request for reconsideration. Claimant appeals.
We affirm. While the Board retains discretion to reopen its prior determinations, limits areplaced on that discretion by Workers' Compensation Law § 123 (see Matter of Leary v NYC Bd. ofEduc., 42 AD3d 712, 713-714 [2007]; Matter of Ford v New York City Tr. Auth., 27 AD3d 792, 794[2006], lv dismissed 7 NY3d 741 [2006]).[FN*]"[W]hether [claims] fall within the ambit of this statute depends on whether they were trulyclosed, that is, if further proceedings . . . were contemplated by the Board"(Matter of Ford v New York City Tr. Auth., 27 AD3d at 794). Our decision in CagleI upholds a decision from which no further proceedings were contemplated regarding thesecond claim. In Cagle II, we specifically upheld the Board's decision that the first claimwas truly closed. Accordingly, both claims were truly closed, thus implicating Workers'Compensation Law § 123.
Claimant further contends that the statute does not control because decedent's estate was notafforded an opportunity to be heard. She premises this contention primarily upon her mother'sdeclining health in the early 1990s, which she asserts prevented her mother (who died in 2000)from fully litigating the claim on behalf of decedent's estate. We held in Cagle I thatsubstantial evidence supported the Board's finding that the mother was competent and able tomanage both her day-to-day activities and legal affairs during the relevant time. It is undisputedthat ample notice was given of the various hearings and, while the mother did not attend some ofthose hearings, one of her daughters appeared and no concern was raised by the daughter about[*3]proceeding. Since the record reveals ample opportunity to beheard, we find that the Board properly declined to reopen the claims under the constraints ofWorkers' Compensation Law § 123. Moreover, the prescription drug benefit card, whichwas clearly issued in error and upon which no payment was (or lawfully could be) made, did notserve under these circumstances to revive a claim already barred by the passage of time (seeMatter of Zumbo v Scarsdale Bus Corp., 43 AD2d 253, 254 [1974]). The remaining issuesare unavailing.
Mercure, J.P., Rose, Kane and Malone Jr., JJ., concur. Ordered that the decisions areaffirmed, without costs.
Footnote *: Workers' Compensation Law§ 123 sets forth, in pertinent part, an exception to the Board's continuing jurisdiction inthat "no claim for compensation or for death benefits that has been disallowed after a trial on themerits, or that has been otherwise disposed of without an award after the parties in interest havebeen given due notice of hearing or hearings and opportunity to be heard and for which nodetermination was made on the merits, shall be reopened after a lapse of seven years from thedate of the accident or death."