| Matter of Hosey v Central N.Y. DDSO |
| 2012 NY Slip Op 00064 [91 AD3d 993] |
| Jnury 5, 2012 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Sharon Hosey,Respondent, v Central New York DDSO et al., Appellants, and Special Fund forReopened Cases, Respondent. Workers' Compensation Board,Respondent. |
—[*1] Steven Licht, Special Funds Conservation Committee, Albany (Jill B. Singer of counsel), forSpecial Fund for Reopened Cases, respondent.
Egan Jr., J. Appeal from a decision of the Workers' Compensation Board, filed January 27,2010, which ruled that Workers' Compensation Law § 25-a is not applicable to claimant'saward of workers' compensation benefits.
Claimant injured her back in 2000 during the course of her employment as a social workerand thereafter was awarded workers' compensation benefits. In 2009, the workers' compensationcarrier for the employer sought to have liability shifted to the Special Fund for Reopened Casespursuant to Workers' Compensation Law § 25-a. Following a hearing, the Workers'Compensation Law Judge determined that Workers' Compensation Law § 25-a applied[*2]and directed that liability be shifted to the Special Fund.Upon review, the Workers' Compensation Board determined that the case had not truly beenclosed and, therefore, rescinded the finding that liability shifted to the Special Fund pursuant toWorkers' Compensation Law § 25-a. The employer and its carrier now appeal.
Workers' Compensation Law § 25-a provides that "[l]iability for a claim shifts to theSpecial Fund where a workers' compensation case that was fully closed is reopened more thanseven years after the underlying injury occurred and more than three years after the last paymentof compensation" (Matter of Guidice vHerald Co., 88 AD3d 1175, 1176 [2011] [internal quotation marks and citationomitted]; see Matter of Beder v BigApple Circus, 84 AD3d 1653, 1654 [2011]). Even where the requisite time frames haveelapsed, however, Workers' Compensation Law § 25-a applies only if the case was trulyclosed (see Matter of Aposporos vNYNEX, 46 AD3d 1016, 1016 [2007]; Matter of Bates v Finger Lakes Truck Rental, 41 AD3d 957, 959[2007]). Whether a case is truly closed is a factual determination for the Board to resolve basedprimarily upon whether any further proceedings are contemplated with regard to issuesconcerning the payment of compensation (see Matter of Rathbun v D'Ella Pontiac Buick GMC, Inc., 61 AD3d1293, 1294-1295 [2009]; Matter of Bates v Finger Lakes Truck Rental, 41 AD3d at959).
Here, claimant had been working continuously with the same restrictions since 2002, had nocompensable lost time and was receiving ongoing payments for medical treatment and care.Although claimant's treating physician indicated in 2002 that he believed claimant to have apermanent disability, the issue of permanency was not addressed and remained unresolved as ofthe date of the carrier's application to shift liability pursuant to Workers' Compensation Law§ 25-a. Accordingly, we find that the Board's determination that there had not been a trueclosing is supported by substantial evidence.
Spain, J.P., Lahtinen, Malone Jr. and Stein, JJ., concur. Ordered that the decision is affirmed,without costs.