| Matter of Reddien v Joseph Davis Inc. |
| 2016 NY Slip Op 01032 [136 AD3d 1144] |
| February 11, 2016 |
| Appellate Division, Third Department |
[*1]
| In the Matter of the Claim of Kevin Reddien,Respondent, v Joseph Davis Inc. et al., Appellants, and Special Fund forReopened Cases, Respondent. Workers' Compensation Board,Respondent. |
Williams & Williams, Buffalo (Jared L. Garlipp of counsel), for appellants.
Steven M. Licht, Special Funds Conservation Committee, Albany (Jill B. Singer ofcounsel), for Special Fund for Reopened Cases, respondent.
Devine, J. Appeal from a decision of the Workers' Compensation Board, filedOctober 22, 2014, which ruled that Workers' Compensation Law § 25-a isinapplicable to claimant's award of workers' compensation benefits.
Claimant suffered work-related injuries to his back and left wrist in July 1999 andwas awarded workers' compensation benefits. In 2001, by stipulation of the parties, aWorkers' Compensation Law Judge found that claimant had a 21.25% schedule loss ofuse of his left hand.[FN*] In 2011, claimant sought treatment forlumbar radiculopathy and the employer's workers' compensation carrier thereafter filed arequest for further action, seeking to transfer liability for the claim to the Special Fundfor Reopened Cases pursuant to Workers' Compensation Law § 25-[*2]a. The Workers' Compensation Board ultimatelydetermined that the case was never truly closed and, therefore, denied the transfer ofliability to the Special Fund. This appeal ensued.
We affirm. "Liability shifts to the Special Fund when an application to reopen a caseis made after a lapse of seven years from the date of the injury and three years from thedate of the last payment of compensation, upon a showing that the case has been trulyclosed" (Matter of Hunter vTops Mkt., Inc., 125 AD3d 1092, 1093 [2015] [internal quotation marks andcitations omitted]; see Matter ofPorter v New York State Elec. & Gas Corp., 113 AD3d 987, 988 [2014])."Whether a case is truly closed is a factual determination for the Board to resolve basedprimarily upon whether any further proceedings are contemplated with regard to issuesconcerning the payment of compensation" (Matter of Hosey v Central N.Y. DDSO, 91 AD3d 993, 994[2012] [citations omitted]; accord Matter of Pankiw v Eastman Kodak Co., 123 AD3d1388, 1389 [2014]). Here, claimant's treating physician for his back injury opined in2000 and 2001 that claimant suffered from a causally-related permanent partial disabilityof his back. Inasmuch as this issue of permanency had not been addressed as of the timeof the carrier's request to transfer liability to the Special Fund, substantial evidencesupports the Board's decision that the case was not truly closed and that Workers'Compensation Law § 25-a did not apply (see Matter of Pankiw vEastman Kodak Co., 123 AD3d at 1389-1390; Matter of Hosey v Central N.Y.DDSO, 91 AD3d at 994-995; Matter of Carubia v Colt Indus. [Crucible Steel], 12 AD3d827, 828 [2004]).
Peters, P.J., Garry, Egan Jr. and Clark, JJ., concur. Ordered that the decision isaffirmed, without costs.
Footnote *:There was no stipulationas to claimant's back, and the Workers' Compensation Law Judge did not address thatissue.