| Matter of Clark v SUNY Upstate Med. Ctr. |
| 2010 NY Slip Op 04487 [73 AD3d 1408] |
| May 27, 2010 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Fleta M. Clark, Respondent, v SUNYUpstate Medical Center et al., Respondents, and Special Fund for Reopened Cases, Appellant.Workers' Compensation Board, Respondent. |
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Garry, J. Appeal from a decision of the Workers' Compensation Board, filed November 24,2008, which directed that the award of workers' compensation benefits be paid by the SpecialFund for Reopened Cases.
Claimant injured her back while working for the employer in 1994. She initially hadcompensable lost time but, in March 1997, a Workers' Compensation Law Judge authorizedtreatment and closed the case. Further work-related injuries in 2001 and 2003 also resulted in thepayment of workers' compensation benefits, beginning in 2003. The 1994 claim was reopened in2004, when a hearing was held to determine, among other things, whether apportionment [*2]between the various claims was appropriate.[FN*]The Special Fund for Reopened Cases was then placed on notice that it may be required toassume liability for the 1994 claim pursuant to Workers' Compensation Law § 25-a. TheWorkers' Compensation Board ultimately determined that it should be, and the Special Fund nowappeals.
We affirm. Liability for a claim shifts to the Special Fund where a workers' compensationcase that was fully closed is reopened more than seven years after the underlying injury occurredand more than three years after the last payment of compensation (see Workers'Compensation Law § 25-a; Matter of Rathbun v D'Ella Pontiac Buick GMC, Inc., 61 AD3d1293, 1294 [2009]; Matter ofHartwell v Amphenol Interconnect Prods., 51 AD3d 1245, 1246-1247 [2008]). Both ofthose time limits, on the face of the record, were satisfied; the Special Fund, however, arguesthat the employer's workers' compensation carrier voluntarily paid benefits it knew wereattributable to the 1994 claim in the three years prior to reopening. The carrier received theNovember 2003 report of an orthopedic surgeon who examined claimant and opined that the1994 accident was partially responsible for her ongoing disability. Although the carrier didsubsequently pay benefits under both the 2001 and 2003 claims, it also raised the issue that theSpecial Fund may be liable for any portion attributable to the 1994 claim, and the Special Fundwas notified of its potential liability (see Workers' Compensation Law § 25 [1][f]). As substantial evidence in the record thus supports a finding that the carrier did notvoluntarily assume liability for payments attributable to the 1994 claim, the Board appropriatelyfollowed the spirit and purpose of Workers' Compensation Law § 25-a to shift liability ofthat stale claim to the Special Fund (seeMatter of Early v New York Tel. Co., 57 AD3d 1341, 1343 [2008]; Matter of Fuentes v New York City Hous.Auth., 53 AD3d 873, 874-875 [2008]; cf. Matter of Scoppo v American Brake ShoeCo., 43 AD2d 603, 604 [1973]; Matter of Gillette v Staub & Son, 8 AD2d 896,896-897 [1959]).
We have considered and rejected the Special Fund's remaining argument.
Peters, J.P., Rose, Stein and McCarthy, JJ., concur. Ordered that the decision is affirmed,without costs.
Footnote *: The Workers' CompensationBoard found that the 1994 claim was reopened in 2007; the record reflects, and the parties agree,that it was actually reopened in 2004.