| Matter of Guidice v Herald Co. |
| 2011 NY Slip Op 07535 [88 AD3d 1175] |
| October 27, 2011 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Toni Guidice, Respondent, v TheHerald Company et al., Respondents, and Special Fund for Reopened Cases, Appellant.Workers' Compensation Board, Respondent. |
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Falge & McClean, P.C., North Syracuse (John I. Hvozda of counsel), for Liberty MutualInsurance Company, respondent.
Egan Jr., J. Appeal from a decision of the Workers' Compensation Board, filed August 5,2009, which directed that liability be shifted to the Special Fund for Reopened Cases pursuant toWorkers' Compensation Law § 25-a.
In August 2000, claimant filed a claim for workers' compensation benefits based upon herdevelopment of bilateral carpel tunnel syndrome during the course of her employment. Claimantthereafter underwent bilateral endoscopic carpel tunnel release and, as of January 30, 2004, wascleared to return to work without restrictions. Claimant's case subsequently was established for a15% schedule loss of use and an award of compensation was made. In January 2006, claimantagain underwent surgery, following which she returned to work. Over the course [*2]of the next two years, claimant worked at times without anyrestrictions and, on other occasions, was subject to varying degrees of restriction.
In March 2009, the employer's workers' compensation carrier sought to transfer liability forthe claim to the Special Fund for Reopened Cases pursuant to Workers' Compensation Law§ 25-a. A Workers' Compensation Law Judge granted the carrier's application and, uponreview, the Workers' Compensation Board affirmed. The Special Fund now appeals.
We reverse. Pursuant to Workers' Compensation Law § 25-a, "[l]iability for aclaim shifts to the Special Fund where a workers' compensation case that was fully closed isreopened more than seven years after the underlying injury occurred and more than three yearsafter the last payment of compensation" (Matter of Clark v SUNY Upstate Med. Ctr., 73 AD3d 1408, 1408[2010]; see Matter of Stranahan v CampAdirondack, 78 AD3d 1369, 1370 [2010]). Although the Special Fund argues on appealthat the statutory requirements have not been met because the carrier's application was filed lessthan three years after the last payment of compensation was made in February 2006, we note thatthis argument—although raised before the Workers' Compensation Law Judge—wasnot raised in the Special Fund's application for Board review. Hence, we deem this issue to beunpreserved (see Matter of Martin vNew York Tel., 46 AD3d 1136, 1137 n [2007]; see also Matter of Brown v New York City Dept. of Correction, 74AD3d 1592, 1592 [2010]).
We do, however, find merit to the Special Fund's remaining contention—namely, thatthe record on its face presents a factual question regarding whether claimant received an advancepayment of compensation. To be sure, whether an advance payment of compensation has beenmade is a factual question for the Board to resolve, and its determination in this regard, ifsupported by substantial evidence in the record as a whole, will not be disturbed (see Matterof Stranahan v Camp Adirondack, 78 AD3d at 1370; Matter of McLean v Amsterdam Nursing Home, 72 AD3d 1309,1310 [2010]). Here, while there indeed is no proof that claimant sustained any compensable losttime since February 2006 or that her schedule loss of use award thereafter was adjusted, therecord nonetheless reflects that claimant has remained symptomatic and, more to the point,has—at various times—worked under either no restrictions or different levels ofrestriction since that date.[FN*] In this regard, "evidence that a claimant received full wages despite performing limited or lightduties may result in a finding that advance payments [of compensation] have been made" (Matter of Iannaci v Independent CementCorp., 66 AD3d 1194, 1195 [2009]). Accordingly, in view of the various restrictionsunder which claimant did (or did not) work during the relevant time period, we cannot say thatthe Board's decision is supported by substantial evidence. We therefore remit this matter for suchfurther development of the record as will enable the Board to ascertain whether "the employerpaid for something [it] did not [*3]get in the way of service"(Matter of Radcliffe v County of Nassau, 33 AD2d 938, 940 [1970] [internal quotationmarks and citation omitted]).
Mercure, J.P., Peters, Stein and Garry, JJ., concur. Ordered that the decision is reversed,without costs, and matter remitted to the Workers' Compensation Board for further proceedingsnot inconsistent with this Court's decision.
Footnote *: According to the reports filed byclaimant's treating physician, claimant returned to "full duty without restrictions" in February2006, was subject to "permanent restrictions of no pagination over thirty minutes a day and nokeying over four hours per day" in May 2006, "remain[ed] at work without restrictions" inSeptember 2006 and, as of July 2007, was working under "restrictions of no more than four hoursof keyboarding and one and a half hours of pagination" per day.