| Matter of Sidorovski v New Venture Gear |
| 2008 NY Slip Op 02706 [49 AD3d 1096] |
| March 27, 2008 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Menka Sidorovski, Claimant, v NewVenture Gear et al., Respondents, and Special Fund for Reopened Cases, Appellant. Workers'Compensation Board, Respondent. |
—[*1] Wolff, Goodrich & Goldman, Syracuse (Robert E. Geyer Jr. of counsel), for New VentureGear and another, respondents.
Carpinello, J. Appeal from a decision of the Workers' Compensation Board, filed May 8,2006, which ruled that liability shifted to the Special Fund for Reopened Cases pursuant toWorkers' Compensation Law § 25-a.
In 1986, claimant sustained work-related injuries. In 1992, during the pendency of herworkers' compensation claim, she settled a third-party action from which she received $82,790 innet proceeds. Pursuant to a stipulation between claimant and her self-insured employer, she wassubsequently found to have suffered a permanent partial disability and received a $42,390schedule loss of use award. By decision dated December 27, 1993, her case was marked "closed."Notably, at this juncture, there was no deficiency between the benefits then awarded [*2]and the third-party settlement because the total amount of thecompensation award was less than the settlement proceeds (see Workers' CompensationLaw § 29 [1], [4]; see also Minkowitz, Practice Commentaries, McKinney's ConsLaws of NY, Book 64, Workers' Compensation Law § 29, at 199). There were no furtherproceedings nor payments of compensation until claimant's case was reopened in 2003 when herphysician recommended further medical treatment causally related to the original injuries. Bydecision dated May 8, 2006, the Workers' Compensation Board ultimately ruled that Workers'Compensation Law § 25-a was applicable to this case and shifted liability for furtherawards from the employer to the Special Fund for Reopened Cases. This appeal ensued, and wenow affirm.
As a general rule, liability for reopened cases shifts to the Special Fund where, as here, sevenyears has passed from the date of injury and three years has elapsed from the date of last payment(see Workers' Compensation Law § 25-a [1]). However, Workers' CompensationLaw § 25-a (8) prohibits such a transfer of liability when an award "for deficiencycompensation" is made in accordance with Workers' Compensation Law § 29 (4)(Workers' Compensation Law § 25-a [8]; see Matter of Kusy v South Orangetown Cent. School Dist., 34 AD3d973, 974 [2006]). Deficiency compensation is defined as the difference, if any, between theamount a claimant actually collects from a third-party action and the benefits which he or she isentitled to receive under the Workers' Compensation Law (see Workers' CompensationLaw § 29 [4]; Matter of Kusy v South Orangetown Cent. School Dist., supra).
The Special Fund first contends that liability for claimant's case cannot be transferred to itbecause her case was never truly closed in 1993. To be sure, this issue was a question of fact forthe Board to resolve and turned on whether further proceedings were contemplated (see e.g. Matter of Mackey v MurrayRoofing, 24 AD3d 1149, 1150 [2005]; Matter of Knapp v Empire AluminumIndus., 256 AD2d 811, 811 [1998]). Here, it is clear that claimant's case was truly closed asneither further medical treatment nor additional payment of compensation was contemplated byany involved party at that time. Accordingly, substantial evidence supports the Board's finding ofclosure (see id.).
As to the Special Fund's further contention that Workers' Compensation Law § 25-a(8) precludes the shifting of liability in this case, this Court recently rejected a similar argumentand we do so again here (see Matter ofBelleville v Madame Pirie's, Inc., 28 AD3d 977, 978 [2006], lv denied 7 NY3d717 [2006]). In short, inasmuch as claimant's third-party settlement played no part in theexpiration of the time periods necessary to shift liability to the Special Fund, the Board's findingthat Workers' Compensation Law § 25-a (8) is inapplicable is supported by substantialevidence (see id.).
Mercure, J.P., Peters, Rose and Kavanagh, JJ., concur. Ordered that the decision is affirmed,without costs.