| Matter of Hartwell v Amphenol Interconnect Prods. |
| 2008 NY Slip Op 04424 [51 AD3d 1245] |
| May 15, 2008 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Kathleen Hartwell, Respondent, vAmphenol Interconnect Products et al., Appellants, and Special Fund for Reopened Cases,Respondent. Workers' Compensation Board, Respondent. |
—[*1] Steven Licht, Special Funds Conservation Committee, Albany (Jill B. Waldman of counsel),for Special Fund for Reopened Cases, respondent.
Peters, J.P. Appeal from a decision of the Workers' Compensation Board, filed May 25,2007, which, among other things, ruled that Workers' Compensation Law § 25-a isinapplicable to claimant's award of workers' compensation benefits.
In 1991, claimant sustained injuries to both her wrists during the course of her employment.She subsequently underwent carpal tunnel release surgery on both wrists, as well as right triggerthumb release surgery. In January 1999, claimant was awarded schedule loss of use awards of15% for each hand, to be paid by Liberty Mutual Insurance Company, the employer's workers'compensation carrier. The claim was closed in September 1999, reopened in [*2]August 2000 and marked "no further action is planned" in October2000.
Claimant continued to follow up with her physician for wrist pain and, in 2000, she wasdiagnosed with degenerative arthritis of the right wrist with scapholunate disassociation. InMarch 2002, the claim was reopened and claimant's physician filed a medical proof of change incondition requesting right wrist fusion surgery. A hearing was conducted in June 2002, afterwhich a Workers' Compensation Law Judge (hereinafter WCLJ) found prima facie medicalevidence of causally related scapholunate disassociation under the 1991 claim. The WCLJ alsonoted that a new claim was to be filed, and ordered that the 1991 claim continue to travel withthe new claim. After another hearing, held in December 2002, at which the WCLJ consideredboth the 1991 claim and the new claim, the new claim was established and surgery authorized, tobe covered by Travelers Insurance Company, the workers' compensation carrier, and the 1991claim was designated as "no further action is planned."
In July 2006, the parties were informed that further action on the 1991 claim was being takento consider apportionment with the 2002 claim. At a hearing held in November 2006, LibertyMutual requested that it be relieved of apportionment liability pursuant to Workers'Compensation Law § 25-a. A WCLJ found, among other things, that Workers'Compensation Law § 25-a was inapplicable, based on the determination that the 1991claim was not truly closed. On review, the Workers' Compensation Board affirmed. Theemployer and Liberty Mutual now appeal and we affirm.
Workers' Compensation Law § 25-a (1) provides that the Special Fund for ReopenedCases is liable for any payments if a previously closed case is reopened more than seven yearsfollowing the injury and three years following the last payment of compensation (see Matter of Washburn v Bob HooeyConstr. Co., 39 AD3d 956, 957 [2007]; Matter of Granberry v JCCA Edenwald, Inc., 33 AD3d 1102, 1103[2006]). As the injury occurred in 1991 and no compensation payments have been made toclaimant under this claim since 1999, the time limits have been met. Therefore, applicability ofthe statute depends on whether the case has been truly closed, which is "a factual question for theBoard to determine, based mainly on whether further proceedings were contemplated at the timeof the presumed closing, and that determination will not be reversed if supported by substantialevidence" (Matter of Bates v FingerLakes Truck Rental, 41 AD3d 957, 959 [2007]; see Matter of Granberry v JCCAEdenwald, Inc., 33 AD3d at 1103).
Liberty Mutual contends that the 1991 claim was closed in December 2002, when the WCLJestablished claimant's scapholunate disassociation as a new claim and designated the 1991 claimas no further action planned. However, a designation that no further action is planned on a claimis not dispositive on the issue of closure, as that designation generally indicates that the claim ismerely currently inactive (see Matter of Granberry v JCCA Edenwald, Inc., 33 AD3d at1103; Matter of Buffum v SyracuseUniv., 12 AD3d 887, 888 [2004]). In April 2002, claimant's physician indicated that thescapholunate disassociation was caused by chronic repetitive stress of the 29 years of heremployment, thus implicating the 1991 claim (see Matter of Stevens v MMR Corp., 13 AD3d 1002, 1003 [2004]).As unresolved issues regarding the 1991 claim existed in December 2002, the Board properlyconcluded that the claim was not truly closed.
Spain, Rose, Lahtinen and Kavanagh, JJ., concur. Ordered that the decision is affirmed,without costs.