| Matter of Stranahan v Camp Adirondack |
| 2010 NY Slip Op 08051 [78 AD3d 1369] |
| November 10, 2010 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Albert Stranahan, Respondent, v CampAdirondack et al., Respondents, and Special Fund for Reopened Cases, Appellant. Workers'Compensation Board, Respondent. |
—[*1] Gregory J. Allen, State Insurance Fund, Albany (Thomas A. Phillips of counsel), for CampAdirondack and Another, respondents.
Mercure, J.P. Appeal from a decision of the Workers' Compensation Board, filed August 24,2009, which ruled that liability shifted to the Special Fund for Reopened Cases pursuant to Workers'Compensation Law § 25-a.[*2]
Claimant, a correction officer, sustained a work-related injuryto his back and left knee in 1992 and received workers' compensation benefits for a short timethereafter. A separate workers' compensation claim was established when claimant injured his left kneein 2000, and he successfully sought disability retirement benefits. Claimant subsequently underwent aknee replacement and, in 2008, sought additional benefits, arguing that his disability arose in part fromthe 1992 injury. This prompted an effort by the employer and its workers' compensation carrier to shiftliability for that claim to the Special Fund for Reopened Cases. The Workers' Compensation Boardgranted the application of the employer and carrier, and the Special Fund now appeals.
We reverse. Workers' Compensation Law § 25-a shifts liability for a claim "from theemployer to the Special Fund where an application to reopen a closed case is made more than sevenyears from the date of injury and three years following the last payment of compensation" (Matter of Iannaci v Independent CementCorp., 66 AD3d 1194, 1195 [2009]; see Matter of McLean v Amsterdam Nursing Home, 72 AD3d 1309,1310 [2010]). The Special Fund asserts that claimant's continuing receipt of disability retirementbenefits constituted advance payments of compensation within the three-year period. We note that theBoard's determination of that factual issue will be upheld if supported by substantial evidence in therecord (see Matter of McLean v Amsterdam Nursing Home, 72 AD3d at 1310; Matter ofFoglia v New York City Hous. Auth., 132 AD2d 762, 763 [1987]).
Retirement benefits that can be awarded only "on the basis of an occupational disability. . . must be considered payments of compensation" for purposes of Workers'Compensation Law § 25-a, while those "result[ing] solely from a finding of disability regardlessof its cause are not advance payments of compensation" (Matter of Krystofik v General Elec.Co., 54 AD2d 137, 139 [1976]; seeMatter of Fuentes v New York City Hous. Auth., 53 AD3d 873, 874 [2008]; Matter ofPignataro v Westchester Parkway Police Dept., 5 AD2d 523, 526-527 [1958], affd 7NY2d 848 [1959]). Claimant received a type of disability retirement benefit that requires the underlyingdisability to be work-related only if an applicant has less than 10 years of service credit at the time theapplication for benefits is filed (see Retirement and Social Security Law § 507-a [b] [1],[3]; Matter of Biondi v McCall, 239 AD2d 837, 838 [1997]). Upon this record, it isimpossible to discern whether claimant had over 10 years of service credit. Accordingly, the Board'sfinding that his receipt of disability retirement benefits was not predicated upon his occupationaldisability is not supported by substantial evidence, and this matter must be remitted for furtherdevelopment of the record.
Peters, Malone Jr., Stein and McCarthy, JJ., concur. Ordered that the decision is reversed,without costs, and matter remitted to the Workers' Compensation Board for further proceedings notinconsistent with this Court's decision.