| Matter of Ewing v YMCA |
| 2008 NY Slip Op 09531 [57 AD3d 1080] |
| December 4, 2008 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Inez Ewing, Respondent, v YMCAet al., Respondents, and Special Fund for Reopened Cases, Appellant. Workers' CompensationBoard, Respondent. |
—[*1] Gregory J. Allen, State Insurance Fund, New York City (Jeremy B. Davis of counsel), for YMCAand another, respondents.
Carpinello, J. Appeal from a decision of the Workers' Compensation Board, filed September 26,2007, which ruled that liability shifted to the Special Fund for Reopened Cases pursuant to Workers'Compensation Law § 25-a.
Claimant, a kitchen worker, sustained a left leg injury in September 1989 for which accident, noticeand causality were subsequently established. In November 2001, claimant was awarded a scheduleloss of use of 7.5% based upon a May 2000 C-4 form and accompanying narrative submitted [*2]by Dwiref Mehta, her treating physician. The last payment ofcompensation pursuant to such finding was made in November 2001. In October 2004, claimantsubmitted a handwritten letter to the Workers' Compensation Board requesting that her case bereopened, which request was denied. Claimant then filed a request for further action in June 2005,based upon a March 2005 medical report by Mehta opining that claimant's condition had worsened toa 25% schedule loss of use. The Board reopened the case, the Special Fund for Reopened Cases wasplaced on notice and the Board subsequently determined that liability was transferred to the SpecialFund by operation of Workers' Compensation Law § 25-a. The Special Fund now appeals andwe affirm.
Generally, liability is properly shifted to the Special Fund when a case is closed and subsequentlyreopened more than seven years after the date of injury and more than three years after the lastpayment of compensation (see Workers' Compensation Law § 25-a [1]; Matter of Barberie v Helmsley Spear Co.,51 AD3d 1289, 1290 [2008]). Although a request to reopen need not be made in any particularform, it must set forth facts sufficient to establish the claimant's right to reopen (see Matter of Krajasv Chevy Pontiac Canada Group, 188 AD2d 829 [1992]; Matter of Italiano v Mobil OilCorp., 50 AD2d 638, 639 [1975]). Reopening may occur when a claimant presentsevidence that was either previously unavailable or that a material change in his or her condition hasoccurred (see 12 NYCRR 300.14 [a] [1], [2]; Matter of Cagle v Judge Motor Corp., 31 AD3d 1016, 1017-1018[2006], lv dismissed 7 NY3d 922 [2006]; Matter of Palma v New York City Dept. ofCorrections, 301 AD2d 774, 774-775 [2003]). The Board's interpretation of a request forreopening (see Matter of Krajas v Chevy Pontiac Canada Group, 188 AD2d at 829;Matter of Scallo v Holmes Protection, 176 AD2d 384, 385-386 [1991]), and its decisionabout whether to reopen a case, are matters within its discretion, and the Board's decision will not bedisturbed absent an abuse of discretion (see 12 NYCRR 300.14 [c]; Matter of Colella v New York City Health &Hosps. Corp., 45 AD3d 1078, 1079 [2007]; Matter of Cagle v Judge Motor Corp.,31 AD3d at 1017).
Here, claimant's October 2004 letter requesting a reopening of her case stated no basis for therequest and merely appended Mehta's May 2000 documents that had already been submitted previousto claimant's initial schedule loss of use award. Because there were no grounds for reopening the caseat that time, the Board properly denied claimant's request (see 12 NYCRR 300.14 [a] [1], [2];Matter of Cagle v Judge Motor Corp., 31 AD3d at 1017-1018). Thus, the Board'sdetermination that claimant's October 2004 letter did not constitute an application for reopening, and itssubsequent transfer of liability to the Special Fund based upon claimant's June 2005 request, weresupported by substantial evidence (seeMatter of Fuentes v New York City Hous. Auth., 53 AD3d 873, 873-874 [2008];Matter of Ash v Native Laces & Textiles Co., 85 AD2d 822, 822-823 [1981]).
Mercure, J.P., Spain, Malone Jr. and Stein, JJ., concur. Ordered that the decision is affirmed,without costs.