| Matter of Dicob v AMF Bowling, Inc. |
| 2010 NY Slip Op 07289 [77 AD3d 1034] |
| October 14, 2010 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Ronald Dicob, Respondent, v AMFBowling, Inc., et al., Respondents, and Special Fund for Reopened Cases, Appellant. Workers'Compensation Board, Respondent. |
—[*1] Falge & McLean, P.C., North Syracuse (John I. Hvozda of counsel), for Liberty MutualInsurance Company, respondent.
Kavanagh, J. Appeal from a decision of the Workers' Compensation Board, filed March 26,2009, which ruled, among other things, that liability shifted to the Special Fund for ReopenedCases pursuant to Workers' Compensation Law § 25-a.
Claimant sustained a work-related injury to his back in 1995 and was awarded workers'compensation benefits, with the last payment of compensation made in November 1995.Claimant again sustained compensable injuries to his back while working for the same employerin both January 1999 and June 1999. Subsequent hearings were held on the 1995 claim in 2001and 2002, with findings of no compensable lost time, and in May 2002 the case was closed withno further action planned "without prejudice to apportionment." In July 2004, the 1995 claim[*2]was reopened to travel with the June 1999 claim regardingthe issue of apportionment.[FN1]In September 2004, the 1995 claim was closed without prejudice to Workers' Compensation Law§ 25-a. In 2008, the employer's workers' compensation carrier for the 1995 claim filed arequest for further action on the claim, arguing that liability should shift to the Special Fund forReopened Cases.[FN2]Ultimately, a workers' compensation law judge found no compensable lost time on the 1995claim from May 2002 to the date of the hearing and shifted liability to the Fund pursuant toWorkers' Compensation Law § 25-a. The Workers' Compensation Board affirmed, findingthat the case was closed with no further unresolved issues due to the lack of medical evidencesupporting apportionment and the fact that none of the carriers had raised the issue. The Fundnow appeals.
Generally, "[w]hether a case has been officially closed so as to shift liability to the Fundunder Workers' Compensation Law § 25-a is a question of fact for the Board and dependsupon whether further proceedings [were] contemplated at the time of the closing" (Matter ofKnapp v Empire Aluminum Indus., 256 AD2d 811, 811 [1998]; see Matter of Sidorovski v New VentureGear, 49 AD3d 1096, 1097 [2008]). However, "the Board's determination is arbitrary ifit departs from prior Board precedent and fails to explain the reasons for its departure" (Matter of Hernandez v Taco Bell, Inc.,52 AD3d 891, 893 [2008]). The Board previously rescinded the shifting of liability to theFund pursuant to Workers' Compensation Law § 25-a where the case was closed withoutprejudice to apportionment and despite there being no medical evidence supportingapportionment (see Employer: International Wire Group Inc., 2008 WL 4602980, *2,2008 NY Wrk Comp LEXIS 9717, *3-5 [WCB No. 6971 0612, Oct. 2, 2008]). The Board foundin International Wire Group that the issue of apportionment "was raised and has beenpending without resolution" since the date that the claim was closed without prejudice toapportionment (2008 WL 4602980, *2, 2008 NY Wrk Comp LEXIS 9717, *5). Here, faced withsimilar facts, the Board found that the case was truly closed with no further proceedingscontemplated. Inasmuch as the Board failed to adequately explain its departure from prior Boardprecedent, we modify the decision and remit to the Board for further proceedings (see Matterof Charles A. Field Delivery Serv. [Roberts], 66 NY2d 516, 520 [1985]; Matter ofHernandez v Taco Bell, Inc., 52 AD3d at 893).
Cardona, P.J., Lahtinen, McCarthy and Egan Jr., JJ., concur. Ordered that the decision ismodified, without costs, by reversing so much thereof as found the Special Fund for ReopenedCases liable pursuant to Workers' Compensation Law § 25-a; matter remitted to theWorkers' Compensation Board for further proceedings not inconsistent with this Court's decision;and, as so modified, affirmed.
Footnote 1: The June 1999 claim was closedin 2008 as the result of a settlement pursuant to Workers' Compensation Law § 32.
Footnote 2: The employer had threedifferent workers' compensation carriers for all three of claimant's work-related injuries.