| Matter of Rebeor v Moose Lodge #1280 |
| 2010 NY Slip Op 02885 [72 AD3d 1223] |
| April 8, 2010 |
| Appellate Division, Third Department |
| In the Matter of Brent Rebeor, Claimant, v Moose Lodge#1280 et al., Respondents, and Special Fund for Reopened Cases, Appellant. Workers'Compensation Board, Respondent. |
—[*1] Hinman, Howard & Kattell, L.L.P., Binghamton (Gary G. Tyler of counsel), for MooseLodge #1280 and another, respondents.
Rose, J. Appeal from a decision of the Workers' Compensation Board, filed April 30, 2008,which, among other things, ruled that liability shifted to the Special Fund for Reopened Casespursuant to Workers' Compensation Law § 25-a.
Claimant sustained an employment-related injury in 1988 and was awarded a 10% scheduleloss of use of his leg, with the last payment of compensation made in 1990. In August 2007, afterthe workers' compensation carrier informed him that it would deny his request for payment foradditional medical treatment, he requested further action by filing forms RFA-1 and C-8.1 withthe Workers' Compensation Board. In response, the carrier filed an RFA-2 form seeking relieffrom liability under Workers' Compensation Law § 25-a. The case was reopened [*2]and, although claimant did not appear at the hearing, a Workers'Compensation Law Judge authorized medical treatment as necessary and found that liability hadshifted to the Special Fund for Reopened Cases pursuant to section 25-a. When the SpecialFund's application for review was affirmed by the Board, this appeal ensued.
The Special Fund argues that there has been no evidence of medical treatment since 1990and, thus, no actual liability to shift. However, liability for compensation shifts to the SpecialFund when an application to reopen a case is made after a lapse of seven years from the date ofthe injury and a lapse of three years from the date of the last payment of compensation(see Workers' Compensation Law § 25-a; Matter of Lauritano v Consolidated Edison Co. of N.Y., Inc., 59 AD3d757, 758 [2009]). While it may be true that there was no current liability to be shifted to theSpecial Fund, we find no abuse of the Board's discretion in reopening claimant's case anddetermining that he has a potential claim for further medical treatment that would be theresponsibility of the Special Fund rather than the original carrier (see Matter of Casey vHinkle Iron Works, 299 NY 382, 386 [1949]; see also Matter of Mackey v Murray Roofing, 24 AD3d 1149,1150 [2005]; Matter of Becker v Marcy State Hosp., 264 App Div 643, 644 [1942]).
Nor are we persuaded that the Board improperly departed from its own precedent. Contraryto the Special Fund's contention, the Board has sufficiently explained its reasons for shiftingliability despite the absence of payable medical benefits in Employer: Del Labs (2009WL 193434, *4-6, 2009 NY Wrk Comp LEXIS 80, *9-17 [WCB No. 2940 8739, Jan. 14,2009]). Although that decision postdated the Board's decision here, it would provide thenecessary explanation if we were to remit the matter as we did in Matter of Rogers v Del Labs (52AD3d 1129, 1130 [2008]).
The Special Fund's remaining contentions have been examined and found to be lacking inmerit.
Spain, J.P., Kavanagh, Stein and Egan Jr., JJ., concur. Ordered that the decision is affirmed,without costs.