| Matter of Zogaria v Quebecor World USA Inc. |
| 2015 NY Slip Op 01224 [125 AD3d 1090] |
| February 11, 2015 |
| Appellate Division, Third Department |
[*1]
| In the Matter of the Claim of Diane Zogaria,Claimant, v Quebecor World USA Inc. et al., Respondents, and Special Fund forReopened Cases, Appellant. Workers' Compensation Board,Respondent. |
Steven M. Licht, Special Funds Conservation Committee, Albany (Jill B. Singer ofcounsel), for appellant.
Goldberg Segalla, Buffalo (Debora L. Doby of counsel), for Quebecor World USAInc., and another, respondents.
Clark, J. Appeal from a decision of the Workers' Compensation Board filedDecember 27, 2013, which ruled that liability shifted to the Special Fund for ReopenedCases pursuant to Workers' Compensation Law § 25-a.
Claimant sustained a work-related injury to her left knee on June 1, 2005, and herundisputed claim for workers' compensation benefits was established. She was awardedbenefits from August 2005 to November 2005 and, thereafter, did not lose any more timefrom work. In December 2006, a Workers' Compensation Law Judge found a 22.5%schedule loss of use of claimant's left leg, and awarded additional benefits, which theworkers' compensation carrier paid in full prior to January 4, 2007. Claimant continuedreceiving symptomatic medical care and, in January 2012, her physician requestedauthorization for a left total knee arthroplasty. The carrier authorized surgery on February27, 2012, and claimant underwent the procedure on September [*2]21, 2012. Shortly thereafter, the carrier requested thatliability be transferred to the Special Fund for Reopened Cases pursuant to Workers'Compensation Law § 25-a. The Workers' Compensation Law Judge deniedthe request, but the Workers' Compensation Board reversed, finding that liability shiftedto the Special Fund when the case was reopened in September 2012, at the time thatclaimant underwent the authorized surgery. This appeal by the Special Fund ensued.
"Workers' Compensation Law § 25-a (1) provides that liability shiftsfrom the carrier to the Special Fund when an application to reopen a closed case is mademore than seven years after the date of the injury and three years following the lastpayment of benefits" (Matter ofPorter v New York State Elec. & Gas Corp., 113 AD3d 987, 988 [2014][internal quotation marks and citations omitted]). Even when the requisite time periodshave passed, liability will not shift pursuant to section 25-a unless the case was trulyclosed (see id.; Matter ofPalermo v Primo Coat Corp., 88 AD3d 1042, 1042 [2011], lv denied 18NY3d 810 [2012]; Matter ofBates v Finger Lakes Truck Rental, 41 AD3d 957, 959 [2007]). "Whether andwhen a case is truly closed is a factual question for the Board to determine, based mainlyon whether further proceedings were contemplated at the time of the presumed closing,and that determination will not be reversed if supported by substantial evidence"(Matter of Bates v Finger Lakes Truck Rental, 41 AD3d at 959 [citationsomitted]).
Inasmuch as claimant sought payment for the surgery more than seven years after thedate of injury in June 2005 and three years after the last date of the last payment ofcompensation in January 2007, the issue presented in this case is whether the case wastruly closed prior to the time that surgery was performed (see Matter of Rathbun v D'EllaPontiac Buick GMC, Inc., 61 AD3d 1293, 1294 [2009]). Here, the Boardconcluded that the case was closed following the schedule use award in 2006.[FN*] In response to theSpecial Fund's argument that the request by claimant's physician for authorization ofsurgery constituted an "informal reopening" of the case (see generally Matter of Rileyv Aircraft Prods. Mfg. Corp., 40 NY2d 366, 370-371 [1976]), the Board determinedthat the case was informally closed again when the carrier authorized surgery in February2012. As in Rathbun, claimant remained medically cleared for full-duty work atthe time of the February 2012 authorization of surgery, and did not seek compensationfor lost time. Inasmuch as there is no evidence that other issues remained outstandingafter surgery was authorized, and "all that remained to be resolved was whether claimantherself would decide to undergo this surgical procedure" (Matter of Rathbun v D'EllaPontiac Buick GMC, Inc., 61 AD3d at 1295), substantial evidence supports theBoard's determination that the case was truly closed in February 2012 (see id. at1294-1295; see also Matter of Porter v New York State Elec. & Gas Corp.,113 AD3d at 988-989; Matter of Palermo v Primo Coat Corp., 88 AD3d at1042-1043).
The Special Fund's remaining challenges are either contrary to this Court's precedent,otherwise lacking in merit, or unpreserved for our review.
McCarthy, J.P., Egan Jr. and Lynch, JJ., concur. Ordered that the decision isaffirmed, without costs.
Footnote *:The fact that claimantreceived symptomatic treatment after 2006 would not preclude a true closure; "[a] casemay be truly closed where symptomatic medical treatment is authorized, even if theclaimant's condition may change or worsen in the future, which would result in areopening of the case" (Matter of Bates v Finger Lakes Truck Rental, 41 AD3d at959).