| Matter of McLean v Amsterdam Nursing Home |
| 2010 NY Slip Op 03017 [72 AD3d 1309] |
| April 15, 2010 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Grace McLean, Respondent, vAmsterdam Nursing Home et al., Respondents, and Special Fund for Reopened Cases,Appellant. Workers' Compensation Board, Respondent. |
—[*1] Jones, Jones & O'Connell, L.L.P., New York City (Lauren Camo of counsel), for AmsterdamNursing Home and another, respondents.
Egan Jr., J. Appeal from a decision of the Workers' Compensation Board, filed November17, 2008, which ruled that liability shifted to the Special Fund for Reopened Cases pursuant toWorkers' Compensation Law § 25-a.
Claimant sustained a work-related injury in July 1996 and received workers' compensationbenefits until March 1997, when she returned to work and her case was closed. In 2006, claimantapplied to reopen her case and, following a hearing where claimant testified, a Workers'Compensation Law Judge (hereinafter WCLJ) determined, among other things, that liability forthe claim had shifted to the Special Fund for Reopened Cases pursuant to Workers'Compensation Law § 25-a. On review, the Workers' Compensation Board modified theWCLJ's decision, finding that claimant's testimony did not establish liability pursuant to thestatute and held that decision in abeyance pending the submission of further evidence. Followingthe employer's submission of evidence that claimant was absent from work, due to her 1996work-related injury, for numerous days from 2002 to 2005, a different WCLJ found the SpecialFund liable for the claim pursuant to Workers' Compensation Law § 25-a. On review, theBoard affirmed and the Special Fund now appeals.
"Whether Workers' Compensation Law § 25-a is applicable in a given case is an issueof fact for the Board, and its determination must be upheld if supported by substantial evidence"(Matter of Fuentes v New York CityHous. Auth., 53 AD3d 873, 873-874 [2008] [citations omitted]; accord Matter of Lauritano v ConsolidatedEdison Co. of N.Y., Inc., 59 AD3d 757, 758 [2009]). Liability under the statutetransfers to the Special Fund when an application to reopen a closed case is made more thanseven years from the date of injury and more than three years after the last payment ofcompensation (see Workers' Compensation Law § 25-a [1]). Notably, "[a]dvancepayments that are made voluntarily, in recognition of an employer's liability, are payments ofcompensation" (Matter of Fuentes v New York City Hous. Auth., 53 AD3d at 874).However, "[w]ages paid and credited to accumulated sick leave are not payments ofcompensation" (Matter of Brock v Great A & P Tea Co., 84 AD2d 645, 646 [1981],appeal withdrawn 56 NY2d 593 [1982]; accord Matter of Faison v City of N.Y. Dept. of Human Resources, 24AD3d 829, 830 [2005], lv dismissed 7 NY3d 783 [2006]).
The Special Fund contends that the Board's determination shifting liability for this claimpursuant to Workers' Compensation Law § 25-a is not supported by substantial evidence.We agree. In making a determination as to whether the employer made an advance payment ofcompensation, the Board initially concluded that it was not established by claimant's hearingtestimony whether she utilized sick time for the dates that she was out of work from 2002 to2005 and remitted the matter for further development of the record. The only additional evidencesubsequently presented was a C-11 form submitted by the employer that confirms the amount oftime missed, but does not address whether claimant utilized sick time for any or all of the time.In the absence of proof regarding the manner in which claimant was compensated for the timeabsent from work, the Board could not properly assess whether the employer made an advancedpayment of compensation precluding a transfer of liability to the Special Fund. Accordingly, weconclude that the Board's determination is not supported by substantial evidence and the mattermust be remitted for further development of the record on this issue (see Matter of Iannaci v IndependentCement Corp., 66 AD3d 1194, 1196 [2009]).
Cardona, P.J., Spain, Malone Jr. and McCarthy, JJ., concur. Ordered that the decision isreversed, without costs, and matter remitted to the Workers' Compensation Board for furtherproceedings not inconsistent with this Court's decision.