| Matter of Giglio v C.I.R. Elec. |
| 2008 NY Slip Op 08224 [55 AD3d 1183] |
| October 30, 2008 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Carl Giglio, Claimant, v C.I.R.Electrical et al., Respondents, and Special Fund for Reopened Cases, Appellant. Workers'Compensation Board, Respondent. |
—[*1] Williams & Williams, Buffalo (Jared L. Garlipp of counsel), for C.I.R. Electrical and another,respondents.
Kavanagh, J. Appeal from a decision of the Workers' Compensation Board, filed March 14, 2007,which ruled that liability shifted to the Special Fund for Reopened Cases pursuant to Workers'Compensation Law § 25-a.
In January 1995, claimant was working when he fell on stairs, causing an injury to his scrotum. Asa result of his injury, claimant applied for workers' compensation benefits, was determined to bedisabled and received medical treatment and a weekly award for lost time through January 1999. InSeptember 2000, the Workers' Compensation Law Judge (hereinafter WCLJ) found no medicalevidence of a further causally related disability, directed claimant to produce prima facie medicalevidence of any injury related to his shoulders, arms, neck and back, [*2]and marked that "no further action" on the claim was planned. Plaintiff didnot seek any additional medical treatment for these injuries until almost four years later in August 2004.Claimant's workers' compensation carrier filed a C-8.1 form (notice of treatment issue/disputed billissue) dated February 23, 2005, seeking to transfer liability for the payment of this claim to the SpecialFund for Reopened Cases under Workers' Compensation Law § 25-a.
At a hearing in September 2005, the WCLJ found that Workers' Compensation Law § 25-adid not apply because there had been unresolved issues regarding injuries to claimant's shoulders, arms,neck and back, and, as such, the claim was not truly closed at the September 2000 hearing. TheWCLJ then found that claimant had not sustained any causally related injuries to his shoulders, arms,neck and back, and stated that "after thirty days the carrier can re-apply for [Workers' CompensationLaw § 25-a relief] because the issues have been resolved by [this] decision."
At that time, a representative for the Special Fund pointed out that a third-party action may havebeen brought by claimant in connection with this claim that could affect the applicability of Workers'Compensation Law § 25-a and indicated that she would investigate whether there was, in fact, apending third-party action. In November 2005, after further treatment was obtained by claimant, thecarrier filed a request for further action, arguing that all issues had been resolved at the September 2005hearing. A hearing was held in February 2006 and the Special Fund argued at that time that there wasno true closure of the case because of the existence of a malpractice action that had been broughtagainst a hospital on claimant's behalf. When no other information about this claim was provided, theWCLJ found that the claim had, in fact, been closed and that Workers' Compensation Law §25-a applied. The Workers' Compensation Board affirmed the WCLJ's decision, and the Special Fundnow appeals.
Because the Board's determination as to the applicability of Workers' Compensation Law §25-a was supported by substantial evidence (see Matter of Fuentes v New York City Hous. Auth., 53 AD3d 873,874 [2008]; Matter of Sidorovski v NewVenture Gear, 49 AD3d 1096, 1098 [2008]), we affirm. Liability for a claim may shift to theSpecial Fund when the matter is reopened after the passage of seven years from the date of the injuryand three years from the date of the last payment of an award (see Workers' CompensationLaw § 25-a [1]; Matter of Belleville vMadame Pirie's, Inc., 28 AD3d 977, 977-978 [2006], lv denied 7 NY3d 717[2006]). While the requisite time periods that would result in the application of Workers' CompensationLaw § 25-a have passed, the question as to whether this claim was truly closed is a factualdetermination to be made by the Board and is dependent, in part, upon whether, at the time it isclaimed to have been closed, further proceedings were contemplated (see Matter of Casey vHinkle Iron Works, 299 NY 382, 385 [1949]; Matter of Sidorovski v New VentureGear, 49 AD3d at 1097-1098).
The Special Fund takes issue with the Board's finding that this case was closed and argues thatwhere a third-party action is pending, there can never be a true closure of such claim. We disagree.Here, there was no award of deficiency compensation that would prohibit the transfer of liability to theSpecial Fund (see Workers' Compensation Law § 25-a [8]; Matter of Barberie v Helmsley Spear Co.,51 AD3d 1289, 1291 [2008]). Moreover, the WCLJ clearly determined that no furtherproceedings were contemplated and, even though a third-party action was pending, there were nounresolved issues or further action contemplated on this claim (see Executive Dept. Div. ofParole, 2007 WL 550522, 2007 NY Wrk Comp LEXIS 443 [2007]; compare Matter of Giemza v Town ofCambridge, 45 AD3d 1008 [2007]).[*3]
Nor are we persuaded that the Board failed to follow its ownprecedent in its decision in this matter. While it is true that the Board has previously concluded thatthere was no true closure of a claim where a third-party action was pending, that decision was primarilybased upon the fact that the permanent nature of the claimant's injuries was an unresolved issue and, asa result, further proceedings on the claim were in fact contemplated (see Oneida County SheriffsDept., 2007 WL 2923568, 2007 NY Wrk Comp LEXIS 7131 [2007]). Here, the Board'sdecision carried with it an implicit finding that claimant's injuries were not permanent and, as such, is notat odds with that finding. Accordingly, we see no reason to disturb the Board's decision.
Peters, J.P., Rose, Lahtinen and Kane, JJ., concur. Ordered that the decision is affirmed, withoutcosts.