| Matter of Donnelly v Alden Cent. Schools |
| 2011 NY Slip Op 03332 [83 AD3d 1368] |
| April 28, 2011 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Patricia Donnelly, Respondent, vAlden Central Schools et al., Appellants, and Special Fund for Reopened Cases, Respondent.Workers' Compensation Board, Respondent. |
—[*1] Steven M. Licht, Special Funds Conservation Committee (Jill B. Singer of counsel), forSpecial Fund for Reopened Cases, respondent.
Lahtinen, J. Appeal from a decision of the Workers' Compensation Board, filed March 11,2010, which ruled that Workers' Compensation Law § 25-a is inapplicable to claimant'saward of [*2]workers' compensation benefits.
Claimant suffered a work-related injury to her right hip, right knee and right leg in February2001. In May 2006, a Workers' Compensation Law Judge made an 85% schedule loss of useaward for claimant's right leg, authorized further medical treatment and care as necessary andindicated that no further action was planned. Subsequently, in a medical report dated May 21,2009, claimant's treating physician requested authorization for various procedures, including afull knee replacement. In response, the self-insured employer and its third-party administrator(hereinafter collectively referred to as the employer) applied to shift liability to the Special Fundfor Reopened Cases. Ultimately, the Workers' Compensation Board denied the application andthe employer now appeals.
We affirm. Pursuant to Workers' Compensation Law § 25-a, the Special Fund becomesliable for claims that are reopened more than seven years from the date of the injury and threeyears from the date of the last payment of compensation (see Matter of Linz v Maine Endwell School Dist., 79 AD3d 1541,1542 [2010]; Matter of Maguire vUnited Parcel Serv., 78 AD3d 1345, 1346 [2010]). The parties agree that the case wasclosed upon the payment of the schedule loss of use in May 2006 and that an official request forknee replacement was not filed with the Board until the expiration of the applicable time limits.Thus, the only question before this Court is whether there was substantial evidence to support theBoard's determination that medical reports submitted in January 2009 and February 2009constituted an application to reopen.
The Board may deem medical reports an application to reopen if the reports give it sufficientnotice of a change in a claimant's condition, rather than simply indicating continued disabilityand treatment (see Matter of Linz v Maine Endwell School Dist., 79 AD3d at 1542; Matter of Gregorec v Brenners FurnitureCo., Inc., 68 AD3d 1301, 1302 [2009]). Here, the report submitted in January 2009related an incident in which claimant's right knee buckled, sending her to the floor, and statedthat she was given an injection to combat her pain and discomfort. The February 2009 reportindicated that the January 2009 injection provided little relief, that claimant and her physiciandiscussed the possibility of both partial and total knee replacement and that an MRI wasrequested for further evaluation. As such, we find that substantial evidence supports the Board'sdetermination that the medical reports constituted an application to reopen within three years ofthe last payment of compensation (see Matter of Linz v Maine Endwell School Dist., 79AD3d at 1543; Matter of Phillips vPlainville Turkey Farms, Inc., 45 AD3d 1061, 1063 [2007]).
Spain, J.P., Kavanagh, McCarthy and Egan Jr., JJ., concur. Ordered that the decision isaffirmed, without costs.