| Matter of Gregorec v Brenners Furniture Co., Inc. |
| 2009 NY Slip Op 09117 [68 AD3d 1301] |
| December 10, 2009 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Frank Gregorec, Respondent, vBrenners Furniture Company, Inc., et al., Appellants, and Special Fund for Reopened Cases,Respondent. Workers' Compensation Board, Respondent. |
—[*1] Steven M. Licht, Special Funds Conservation Committee, Albany (Jill B. Singer of counsel),for Special Fund for Reopened Cases, respondent.
Stein, J. Appeal from a decision of the Workers' Compensation Board, filed July 1, 2008,which ruled that Workers' Compensation Law § 25-a is inapplicable to claimant's award ofworkers' compensation benefits.[*2]
Claimant suffered a work-related back injury in February2000. No award of compensation was directed at that time as claimant did not lose any time fromwork. Claimant continued to receive symptomatic chiropractic treatment from the date of theinjury until November 2000, then had one treatment in 2003 and resumed periodic chiropractictreatments in February 2005.
In September 2005, claimant's chiropractor began filing C-4 reports indicating thatclaimant's injury may result in permanent restriction or a total or partial loss of function. Thechiropractor did not, however, offer a specific opinion on the permanency of claimant'scondition. In July 2007, the workers' compensation carrier filed a request for further action,raising the applicability of Workers' Compensation Law § 25-a, which prompted theWorkers' Compensation Board to index the case for the first time. Following a hearing, theWorkers' Compensation Law Judge determined, among other things, that Workers'Compensation Law § 25-a was inapplicable. On review, the Board affirmed and thisappeal ensued.
Pursuant to Workers' Compensation Law § 25-a, liability for compensation shifts tothe Special Fund for Reopened Cases when an application to reopen a case is made after a lapseof seven years from the date of the injury and a lapse of three years from the date of the lastpayment of compensation (see Workers' Compensation Law § 25-a; Matter of Lauritano v Consolidated EdisonCo. of N.Y., Inc., 59 AD3d 757, 758 [2009]). "A medical report may be deemed anapplication to reopen if the report gives the Board sufficient notice of a change in a claimant'scondition, as opposed to simply indicating continued disability and treatment" (Matter ofJones v HSBC, 304 AD2d 864, 866 [2003] [citations omitted]; see Matter of Hantz v BrightmanAgency, 29 AD3d 1098, 1099 [2006]). Nevertheless, such a report "should not be givena strained interpretation, but should only be interpreted as a basis to reopen if that was clearly thedoctor's intention" (Matter of Jones v HSBC, 304 AD2d at 866; see Matter ofLoiacono v Sears, Roebuck & Co., 230 AD2d 351, 354 [1997]). The mere mention ofpermanency in a medical report, absent an opinion regarding the degree of permanency, isinsufficient to act as a request to reopen a case (see Employer: Granville Cent. School,2009 WL 525511, *2, 2009 NY Wrk Comp LEXIS 05472, *4-5 [WCB No. 5010 8014, Feb. 20,2009]; Employer: Cayuga Correctional Facility, 2009 WL 1223561, *2, 2009 NY WrkComp LEXIS 08477, *4-5 [WCB No. 6001 2674, Apr. 24, 2009]).
Here, the Board determined that medical reports, submitted in September 2005 andthereafter, served to reopen claimant's case prior to a lapse of seven years since the injury. Themedical reports—which included the C-4 reports filed by claimant's treating chiropractorand two independent medical examinations conducted in 2005 on behalf of the carrier—donot refer to any change in claimant's condition or contain any opinion as to permanency; theymerely recommend a continuation of chiropractic care. Under these circumstances, we concludethat [*3]such medical reports did not display a clear intention bythe reporter to reopen[FN*]the case (see Matter of Hantz v Brightman Agency, 29 AD3d at 1100; Matter ofJones v HSBC, 304 AD2d at 866-867; Matter of Loiacono v Sears, Roebuck & Co.,230 AD2d at 354; Matter of Ammirata v Weidy, 34 AD2d 717, 718 [1970], affd28 NY2d 564 [1971]; cf. Matter ofPhillips v Plainville Turkey Farms, Inc., 45 AD3d 1061, 1063 [2007]; Matter ofDavis v Madden Constr. Co., 295 AD2d 826, 827 [2002]). Inasmuch as the Board'sdetermination was not supported by substantial evidence, it must be reversed (see generally Matter of Fuentes v NewYork City Hous. Auth., 53 AD3d 873, 873-874 [2008]).
Rose, J.P., Kavanagh, McCarthy and Garry, JJ., concur. Ordered that the decision isreversed, without costs, and matter remitted to the Workers' Compensation Board for furtherproceedings not inconsistent with this Court's decision.
Footnote *: Although the case was notformally opened until 2007, the medical payments made by the carrier are deemed an informalopening of a claim (see Matter ofRodriguez v Greenfield Die Casting, 53 AD3d 728, 730 [2008]) and the case wasdeemed closed either when claimant returned to work after the injury (in February 2000) or uponthe cessation of payment of medical expenses (see id.; see also Matter of Riley vAircraft Prods. Mfg. Corp., 40 NY2d 366, 370 [1976]).