| Matter of Lynch v Buffalo Bills, Inc. |
| 2009 NY Slip Op 03652 [62 AD3d 1061] |
| May 7, 2009 |
| Appellate Division, Third Department |
| In the Matter of Thomas Lynch, Respondent, v Buffalo Bills, Inc.,Respondent, and Special Fund for Reopened Cases, Appellant. Workers' Compensation Board,Respondent. |
—[*1] Williams & Williams, Buffalo (Jared L. Garlipp of counsel), for Buffalo Bills, Inc.,respondent.
McCarthy, J. Appeal from a decision of the Workers' Compensation Board, filed December14, 2007, which, among other things, ruled that liability shifted to the Special Fund forReopened Cases pursuant to Workers' Compensation Law § 25-a.
Claimant, a former professional football player, was classified with a permanent partialdisability in 1984. As of September 25, 2001, all workers' compensation payments weresuspended because he was earning in excess of his former average weekly wages. Pursuant to aJuly 11, 2002 decision, his case was closed with no further action. On April 27, 2005, theself-insured employer requested discharge to the Special Fund for Reopened Cases pursuant toWorkers' Compensation Law § 25-a. Indeed, as of that date, seven years had elapsed fromthe [*2]initial injury and three years had elapsed from the lastpayment of compensation (see Workers' Compensation Law § 25-a [1]).
No action was immediately taken on this request. Ultimately, however, a hearing was held.In the meantime, claimant's lawyer submitted claimant's recent W-2 statements reflectingdecreased earnings in recent years and requested, apparently for the first time at that hearing, anew claim for reduced earnings for the period January 1, 2003 through January 1,2006.[FN*]Following this hearing, the Workers' Compensation Law Judge found that the case was closed asof July 2002, transferred liability to the Special Fund effective September 25, 2004 (i.e., threeyears after the last payment was made) and bifurcated the new claim for reduced earningsbetween the employer and the Special Fund. Upon the Special Fund's application to review, theWorkers' Compensation Board affirmed. In so doing, the Board found that the case was closed asof July 2002, when no further proceedings were contemplated. The Board further concluded thatthe matter should have been opened for Workers' Compensation Law § 25-a considerationsubsequent to the employer's April 27, 2005 letter and that liability should be transferred to theSpecial Fund. The Board upheld the bifurcation of the new claim. The Special Fund nowappeals.
Workers' Compensation Law § 25-a provides that "after a lapse of seven years fromthe date of the injury . . . and also a lapse of three years from the date of the lastpayment of compensation," an award of benefits shall be made "against the [S]pecial [F]und"(Workers' Compensation Law § 25-a [1]). Here, there is no dispute that there was aseven-year lapse from the date of claimant's 1984 injury and a three-year lapse from the date ofthe last payment of compensation. Moreover, the question of "[w]hether there has been a trueclosing of the case is a factual issue for the Board to resolve and its determination in this regardwill be upheld if supported by substantial evidence" (Matter of Early v New York Tel. Co., 57 AD3d 1341, 1343[2008]). Substantial evidence supports the Board's factual determination that this case was "trulyclosed" as of July 2002 (see id. at 1342; Matter of Giglio v C.I.R. Elec., 55 AD3d 1183, 1185 [2008]; Matter of Rodriguez v Greenfield DieCasting, 53 AD3d 728, 730 [2008]; Matter of Krajas v Chevy Pontiac CanadaGroup, 188 AD2d 829 [1992]), notwithstanding the claim for resumed reduced earningbenefits (cf. Matter of Jansch v Sagamore Children's Fund, 302 AD2d 851, 853 [2003]).
In addition, we are likewise persuaded that the Board's finding that liability should betransferred to the Special Fund as of the employer's April 27, 2005 application was alsosupported by substantial evidence (seeMatter of Ewing v YMCA, 57 AD3d 1080, 1081 [2008]; Matter of Fuentes v New York City Hous.Auth., 53 AD3d 873, 873-874 [2008]). This being the case, however, we agree with theSpecial Fund's argument that the Board should not have directed any payments by the employer(see generally Matter of Castro v NewYork City Tr. Auth., 50 AD3d 1272, 1273 [2008]). Rather, claimant's recovery waslimited to payment by the Special Fund for the two-year period prior to the April 27, 2005application (see Workers' Compensation Law § 25-a [1]; Matter of Ferraro vNathan & Co., 84 AD2d 621 [1981]; Matter of Gantz v Wallace & Tiernan LucidolDiv., 41 AD2d 991, 993 [1973]).[*3]
Cardona, P.J., Peters, Lahtinen and Kane, JJ., concur.Ordered that the decision is modified, without costs, by reversing so much thereof as directedpayment of reduced earning benefits by the self-insured employer and, as so modified, affirmed.
Footnote *: As claimant's earnings for 2006once again exceeded his former average weekly wages, no claim was being made for a reducedearning award for that year.