| Matter of Palermo v Primo Coat Corp. |
| 2011 NY Slip Op 06964 [88 AD3d 1042] |
| October 6, 2011 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Maria Palermo,Claimant, v Primo Coat Corporation et al., Respondents, and Special Fund for ReopenedCases, Appellant. Workers' Compensation Board, Respondent. |
—[*1] Gregory J. Allen, State Insurance Fund, New York City (Charlotte Flynn of counsel), forPrimo Coat Corporation and another, respondents.
Stein, J. Appeal from a decision of the Workers' Compensation Board, filed April 30, 2010,which, among other things, ruled that liability shifted to the Special Fund for Reopened Casespursuant to Workers' Compensation Law § 25-a.
Claimant, a seamstress, sustained a work-related injury to her right knee in 2000, and herclaim for workers' compensation benefits was established. The claim was subsequently amendedto include various other ailments, but claimant's assertion that she had suffered a consequentialleft elbow injury was not resolved. Claimant thereafter pleaded guilty to a charge of petit larcenyarising out of her fraudulently collecting workers' compensation benefits while [*2]working. As a result, she was permanently disqualified fromreceiving further lost wage benefits in 2005, although her medical expenses continued to be paid(see Workers' Compensation Law § 114-a). In 2008, the employer and its workers'compensation carrier applied for a finding pursuant to Workers' Compensation Law § 25-athat liability for the claim should be shifted to the Special Fund for Reopened Cases. TheWorkers' Compensation Board granted the application, and the Special Fund now appeals.
We affirm. Workers' Compensation Law § 25-a shifts liability for a claim "to theSpecial Fund where a workers' compensation case that was fully closed is reopened more thanseven years after the underlying injury occurred and more than three years after the last paymentof compensation" (Matter of Clark vSUNY Upstate Med. Ctr., 73 AD3d 1408, 1408 [2010]; see Matter of Barberie v Helmsley SpearCo., 51 AD3d 1289, 1290 [2008]). There is no dispute that the requisite time periodshave passed and, as such, the sole issue before us is whether the case was truly closed givenclaimant's unresolved claim of a consequential left elbow injury. The fact that a "claimant'scondition may change or worsen in the future" does not preclude a finding that the claim is trulyclosed (Matter of Bates v Finger LakesTruck Rental, 41 AD3d 957, 959 [2007]; accord Matter of Rathbun v D'Ella Pontiac Buick GMC, Inc., 61 AD3d1293, 1294 [2009]). Whether a case is truly closed is a factual question for the Board todetermine—based on whether further proceedings related to the payment of compensationwere contemplated at the time of the presumed closing—and the Board's determinationwill not be disturbed so long as it is supported by substantial evidence (see Matter of Bates vFinger Lakes Truck Rental, 41 AD3d at 959, 960). Compensation is "the money allowancepayable to an employee or to his [or her] dependents," and is distinct from the payment ofmedical expenses (Workers' Compensation Law § 2 [6]; see § 13 [a];Matter of Bates v Finger Lakes Truck Rental, 41 AD3d at 960; Matter of Hill vEastman Kodak Co., 258 AD2d 861 [1999]). Even though issues regarding the alleged leftelbow injury remained outstanding, those issues related to the payment of medical expenses andnot compensation, as claimant was disqualified from obtaining further lost wage benefits in2005. Substantial evidence thus supports the Board's determination that the claim was trulyclosed (see Matter of Zimmerman vQuality Inn, 25 AD3d 829, 830 [2006]; Matter of Mackey v Murray Roofing, 24 AD3d 1149, 1150-1151[2005]).[FN*][*3]
The Special Fund's remaining argument has beenexamined and found to be without merit.
Rose, J.P., Malone Jr., Kavanagh and McCarthy, JJ., concur. Ordered that the decision isaffirmed, without costs.
Footnote *: Contrary to the Special Fund'scontention, our holding in Matter ofMaguire v United Parcel Serv. (78 AD3d 1345 [2010]) does not dictate a differentresult. That case involved voluntary payments for medical treatment. Such payments are"made under circumstances which imply a recognition of liability on the part of the employer"and, thus, may be viewed as payments in advance of compensation sufficient to constitute aninformal award of benefits that is closed only when the payments cease (Matter of Loiacono vSears, Roebuck & Co., 230 AD2d 351, 353 [1997]; see Workers' Compensation Law§ 25 [4]; Matter of Riley v Aircraft Prods. Mfg. Corp., 40 NY2d 366, 370-371[1976]; Matter of Maguire v United Parcel Serv., 78 AD3d at 1346; Matter of Rodriguez v Greenfield DieCasting, 53 AD3d 728, 730 [2008]). In contrast, the inquiry where, as here, a formalclaim has been filed and established is whether and when actual payments ofcompensation were made, and medical expenses do not "constitute the payment ofcompensation" for purposes of Workers' Compensation Law § 25-a (Workers'Compensation Law § 13 [a]; see Matter of Casey v Hinkle Iron Works, 299 NY382, 385-386 [1949]; Matter of Bates v Finger Lakes Truck Rental, 41 AD3d at 958).