| Matter of Hammond v Dutchess Bldg. Specialists |
| 2011 NY Slip Op 03000 [83 AD3d 1276] |
| April 14, 2011 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Mark Hammond,Respondent, v Dutchess Building Specialists et al., Appellants, and Special DisabilityFund, Respondent. Workers' Compensation Board, Respondent. |
—[*1] Steven M. Licht, Special Funds Conservation Committee, Albany (Jill B. Singer of counsel),for Special Disability Fund, respondent.
Rose, J. Appeal from a decision of the Workers' Compensation Board, filed January 25,2010, which ruled that the application by the employer and its workers' compensation carrier forreimbursement from the Special Disability Fund was untimely.
Claimant sustained injuries to his neck and right knee on October 2, 2006 in the course of hisemployment as a carpenter. He first sought medical attention on October 4, 2006 and, days later,his treating physician contacted the employer's workers' compensation carrier to requestpermission to perform an MRI on claimant's right knee. Claimant stopped working on October17, 2006, following which he filed a claim for workers' compensation benefits. In a decisionrendered in July 2007, as relevant here, claimant was awarded benefits for various periodsbeginning October 17, 2006. However, benefits for the period from April 10, 2007 to May 17,[*2]2007 were held in abeyance. Also in that decision, a previousworkers' compensation claim, establishing an injury to claimant's left knee as the result of anaccident on March 21, 2006, was reopened to travel with the October 2006 claim. On October 1,2008, the employer and its workers' compensation carrier (hereinafter collectively referred to asthe employer) filed a claim for reimbursement from the Special Disability Fund (form C-250),pursuant to Workers' Compensation Law § 15 (8), citing, among other things, claimant'sprior workers' compensation claim as a preexisting disability. After the Fund contested theapplication, the Workers' Compensation Board ultimately ruled that it was untimely. Theemployer now appeals.
We affirm. For an employer's form C-250 to be timely, it must be filed "prior to the finaldetermination that the resulting disability is permanent, but in no case more than [104] weeksafter the date of disability or death or [52] weeks after the date that a claim for compensation isfiled with the chair, whichever is later" (Workers' Compensation Law § 15 [8] [f]; see Matter of Krotman v Berke, Berke &Grill, 53 AD3d 812, 813 [2008]). Initially, the employer contends that its October 1,2008 filing was timely, inasmuch as it was within 104 weeks of October 17, 2006, the date uponwhich claimant first began to miss work as a result of his injuries and the payment of workers'compensation benefits commenced. However, disability for the purposes of Workers'Compensation Law § 15 (8) (f) does not necessarily require the cessation of work, but canbe found to begin on the date of injury (see Matter of Hengel v Federici & Sons, 4 NY2d176, 177-178 [1958]; Matter of Napolitano v Christen Realty, 38 AD2d 647 [1971];see generally Matter of Roland v Sunmark Indus., 127 AD2d 894, 895 [1987]). Here, inconcluding that the form C-250 was untimely, the Board relied on the date of the accident,October 2, 2006, as the date of disability. We find no basis to disturb the Board's determination,as the record reflects that all the medical records and forms filed, including the C-2 form filed bythe employer on the day after the accident, refer to that date (see Matter of Hengel v Federici& Sons, 4 NY2d at 178). Contrary to the employer's contention, Matter of Cassata v General MotorsPowertrain (71 AD3d 1342 [2010]) does not control. The determinative issue in thatcase was whether the form C-250 was filed, and our hypothetical discussion as to the latestconceivable date for filing was not the point upon which our holding turned.
We must also reject the employer's contention that its application was timely becauseclaimant's case was closed and later reopened. Indeed, Workers' Compensation Law § 15(8) (f) further provides that, irrespective of whether the time frames above have been met, thefiling of an application is timely if, in the event of the reopening of a case previously closed, it isfiled "no later than the determination of permanency upon such reopening" (see Matter of Somers v Demco, 8NY3d 831, 832-833 [2007]; Matterof Stokes v Valeo Elec. Sys., Inc., 44 AD3d 1223, 1224-1225 [2007], lv denied10 NY3d 714 [2008]). However, whether a case has been truly closed is a factual determinationto be made by the Board, the determination of which depends upon whether further proceedingswere contemplated at the time of the purported closing, and its decision in that regard will not bedisturbed if supported by substantial evidence (see Matter of Bush v Montgomery Ward, 73 AD3d 1313, 1313[2010]; Matter of Cook v OlstenStaffing, 30 AD3d 876, 877 [2006]; Matter of Lane v Tompkins County Sheriff'sDept., 117 AD2d 861 [1986]). Here, at the hearing held on June 28, 2007, a decision onbenefits for the period from April 10, 2007 to May 17, 2007 was held in abeyance.Notwithstanding the fact that subsequent decisions in August 2007 and November 2008 statedthat no further action was planned, the status of those benefits remained unresolved and, thus,substantial evidence supports the Board's determination that the case was never truly closed (see Matter of Hartwell v AmphenolInterconnect Prods., 51 AD3d 1245, 1247 [2008]; Matter of Granberry v JCCA Edenwald, Inc., 33 AD3d 1102, 1103[2006]; Matter of Hirschhorn v L & N Fruit & Produce, 43 AD2d 1007, [*3]1007 [1974]).
Mercure, J.P., McCarthy and Egan Jr., JJ., concur. Ordered that the decision is affirmed,without costs.