| Matter of Bush v Montgomery Ward |
| 2010 NY Slip Op 04091 [73 AD3d 1313] |
| May 13, 2010 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Victoria Bush, Claimant, vMontgomery Ward et al., Appellants, and Special Fund for Reopened Cases, Respondent.Workers' Compensation Board, Respondent. |
—[*1] Steven Licht, Special Funds Conservation Committee, Albany (Jill B. Singer of counsel), forSpecial Fund for Reopened Cases, respondent.
Cardona, P.J. Appeal from a decision of the Workers' Compensation Board, filed December10, 2008, which ruled that Workers' Compensation Law § 25-a is inapplicable toclaimant's award of workers' compensation benefits.
Claimant injured her right knee at work in June 1978 and was awarded workers'compensation benefits. It appears that claimant did not receive awards for her injury after 1981;however, most of the records associated with her original claim were destroyed that year in a fireat the office of the Workers' Compensation Board in the City of Binghamton, Broome County.Accordingly, when claimant submitted an application to reopen her claim in 2006, hearings heldto determine the applicability of Workers' Compensation Law § 25-a lacked the benefit of[*2]documentation regarding the manner in which earlierproceedings were resolved. Following the hearings, a Workers' Compensation Law Judge ruledthat the claim was never truly closed and discharged the Special Fund for Reopened Cases fromliability. The Board upheld that determination upon review, prompting this appeal by theemployer and its workers' compensation carrier.
"Whether a case has been officially closed so as to shift liability to the Fund under Workers'Compensation Law § 25-a is a question of fact for the Board and depends upon whetherfurther proceedings [were] contemplated at the time of the closing" (Matter of Knapp vEmpire Aluminum Indus., 256 AD2d 811, 811 [1998] [citations omitted]; see Matter of Granberry v JCCAEdenwald, Inc., 33 AD3d 1102, 1103 [2006]; Matter of Carubia v Colt Indus. [Crucible Steel], 12 AD3d 827,828 [2004]). Here, available records reveal that claimant's 1978 injury required that she undergosurgery in February 1979. In April 1979, claimant's treating physician filed a medical report withthe Board indicating that claimant was disabled, but he was unable to determine whether herdisability was total or partial. Two months later, claimant was examined by a physicianemployed by the Board whose report suggests that claimant was partially disabled. A hearing toconsider medical evidence was scheduled for October 7, 1980. However, because the results ofthat hearing, as well as any additional records, were destroyed in the fire, the record contains noevidence indicating that the issue of permanency was resolved (see generally Matter ofCarubia v Colt Indus. [Crucible Steel], 12 AD3d at 828).
At hearings held on claimant's application to reopen the case, claimant stated that her claimhad never been closed and that she had worked in a light duty capacity since her injury. In thatregard, medical reports submitted in April 1979 and April 2006 indicate that she was capable ofperforming only light duty work. Additionally, in 2008, her treating physician[FN*]opined that claimant had suffered a 15% to 20% schedule loss of use of her right knee. Under allof the circumstances presented here, we find that substantial evidence supports the Board'sdetermination that, because further proceedings were contemplated to establish the extent of herdisability, claimant's case was not truly closed (see Matter of Hartwell v Amphenol Interconnect Prods., 51 AD3d1245, 1247 [2008]; Matter of Carubia v Colt Indus. [Crucible Steel], 12 AD3d at828; Matter of Knapp v Empire Aluminum Indus., 256 AD2d at 811).
Spain, Malone Jr., McCarthy and Egan Jr., JJ., concur. Ordered that the decision is affirmed,without costs.
Footnote *: The physician who treatedclaimant in 2008 was not the same physician who treated her in 1979.