| Matter of Beder v Big Apple Circus |
| 2011 NY Slip Op 04327 [84 AD3d 1653] |
| May 26, 2011 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Phil Beder,Respondent, v Big Apple Circus et al., Appellants, and Special Fund for ReopenedCases, Respondent. Workers' Compensation Board, Respondent. |
—[*1] Steven M. Licht, Special Funds Conservation Committee, Albany (Jill B. Singer of counsel),for Special Fund for Reopened Cases, respondent.
Stein, J. Appeals (1) from a decision of the Workers' Compensation Board, filed January 14,2010, which ruled that liability did not shift to the Special Fund for Reopened Cases pursuant toWorkers' Compensation Law § 25-a, and (2) from a decision of said Board, filed October7, 2010, which denied the application of the employer and its workers' compensation carrier forreconsideration or full Board review.
Claimant was injured at work in 1987 and was awarded workers' compensation benefits. Hewas found to have a permanent total disability in 1990 and compensation payments continueduntil October 2005, when claimant returned to work. In May 2008, the employer's workers'compensation carrier filed three C-8.1 forms disputing bills for medical services provided on[*2]January 31, 2005, May 22, 2006 and September 17, 2007 asbeing untimely submitted. Beginning in November 2008, the carrier submitted various requestsfor further action on the claim, contending that liability should shift to the Special Fund forReopened Cases pursuant to Workers' Compensation Law § 25-a. Following a hearing, aWorkers' Compensation Law Judge found that liability did not shift to the Special Fund. Onadministrative appeal, the Workers' Compensation Board affirmed, finding, among other things,that the filing of the C-8.1 forms served to reopen the claim within three years from the last dateof compensation, precluding the shift of liability to the Special Fund. The Board subsequentlydenied an application from the employer and its workers' compensation carrier forreconsideration or full Board review. These appeals ensued.
"Pursuant to Workers' Compensation Law § 25-a, liability shifts from the employer tothe Special Fund where an application to reopen a closed case is made more than seven yearsfrom the date of injury and three years following the last payment of compensation" (Matter of Iannaci v Independent CementCorp., 66 AD3d 1194, 1195 [2009] [citations omitted]; accord Matter of Stranahan v CampAdirondack, 78 AD3d 1369, 1370 [2010]). Here, the case was closed pursuant to astipulation by the parties and the last payment of compensation was in October 2005. The Boarddetermined, without providing any supporting rationale, that the carrier's submission of the C-8.1forms in May 2008 constituted an application to reopen the case within three years following thelast payment of compensation and found Workers' Compensation Law § 25-a to beinapplicable.
The C-8.1 forms at issue here dispute three bills submitted by claimant's medical provider forspecific treatments rendered between 2005 and 2007. There does not appear to be any objectionto the necessity of the treatments or any evidence that the treatments reflect a change inclaimant's condition. The only dispute that can be gleaned from the record is that the carriercontends that the bills for the treatments were not timely submitted (see 12 NYCRR325-1.24 [b]). Inasmuch as the payment for continuing medical care does not bar the transfer ofliability under Workers' Compensation Law § 25-a (see generally Matter of Bates v Finger Lakes Truck Rental, 41 AD3d957, 960 [2007]; Matter of McQueen v New York State Div. of Parole, 245 AD2d851 [1997], lv denied 92 NY2d 802 [1998]), we cannot conclude that the issues raised bythe C-8.1 forms, which concern only the timeliness of submitted bills for medical care, wouldserve to toll the time limitations of Workers' Compensation Law § 25-a. Accordingly,based upon our review of the record, we find that the Board's determination was not supported bysubstantial evidence and, therefore, it must be reversed (see Matter of Bates v Finger LakesTruck Rental, 41 AD3d at 960; Matter of McQueen v New York State Div. ofParole, 245 AD2d at 852).
Our decision renders the appeal from the request for reconsideration or full Board reviewacademic.
Peters, J.P., Rose, Malone Jr. and Egan Jr., JJ., concur. Ordered that the decision filedJanuary 14, 2010 is reversed, without costs, and matter remitted to the Workers' CompensationBoard for further proceedings not inconsistent with this Court's decision. [*3]Ordered that the appeal from the decision filed October 7, 2010 isdismissed, as academic, without costs.