| Matter of Mucci v New York State Dept. of Corr. |
| 2012 NY Slip Op 06356 [98 AD3d 1223] |
| September 27, 2012 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Mark Mucci,Respondent, v New York State Department of Corrections et al., Respondents, andSpecial Fund for Reopened Cases, Appellant. Workers' Compensation Board,Respondent. |
—[*1] Michael Miliano, State Insurance Fund, Liverpool (Charles L. Browning of counsel), forNew York State Department of Corrections and another, respondents.
Garry, J. Appeal from a decision of the Workers' Compensation Board, filed July 5, 2011,which ruled that liability shifted to the Special Fund for Reopened Cases pursuant to Workers'Compensation Law § 25-a.
In December 1996, claimant suffered a work-related injury to his left knee that requiredsurgery, and his claim for workers' compensation benefits was established. He received his lastpayment of benefits in May 1997, when he returned to work. In February 1998, a Workers'Compensation Law Judge found no evidence of permanency and closed the case. In July 2009,claimant reinjured his left knee in a nonwork-related incident that required further surgery.Claimant raised issues of scheduled loss of use and permanency in September 2010 and theemployer's workers' compensation carrier thereafter requested that liability for claimant's 1996[*2]case shift to the Special Fund for Reopened Cases pursuant toWorkers' Compensation Law § 25-a. The Workers' Compensation Law Judge found thatWorkers' Compensation Law § 25-a was applicable and directed that liability be shifted tothe Special Fund. On review, the Workers' Compensation Board affirmed and the Special Fundnow appeals.
We affirm. Workers' Compensation Law § 25-a (1) provides that liability shifts fromthe carrier to the Special Fund when an application to reopen a closed case is made more thanseven years after the date of injury and three years following the last payment of benefits (see Matter of McLean v AmsterdamNursing Home, 72 AD3d 1309, 1310 [2010]; Matter of Rathbun v D'Ella Pontiac Buick GMC, Inc., 61 AD3d1293, 1294 [2009]). Even when, as here, the statutory time periods have been met, Workers'Compensation Law § 25-a is only applicable if the case was truly closed (see Matter of Palermo v Primo CoatCorp., 88 AD3d 1042, 1042 [2011], lv dismissed 18 NY3d 810 [2012]; Matter of Bates v Finger Lakes TruckRental, 41 AD3d 957, 959 [2007]). Whether a case was truly closed is a question of factfor the Board to determine "based primarily upon whether any further proceedings arecontemplated with regard to issues concerning the payment of compensation" (Matter of Hosey v Central N.Y. DDSO,91 AD3d 993, 994 [2012]; seeMatter of Dicob v AMF Bowling, Inc., 77 AD3d 1034, 1035 [2010]).
Here, the Board's determination that the case was truly closed in 1998 is supported byevidence in the record. At that time, claimant had returned to work, had no further compensablelost time, no further payments of compensation were made and no further proceedings werecontemplated. While the Special Fund contends that a medical report from June1997—which indicates that at some point it is to be expected that claimant will havearthritic changes to his knee—is proof that the case was not closed, we note that "[t]heexistence of the employer's potential liability for future treatment, or the possibility that theclaimant's condition could deteriorate resulting in the case reopening, does not mean that thematter was not fully closed" (Matter of Jones v HSBC, 304 AD2d 864, 866 [2003]; see Matter of Mackey v MurrayRoofing, 24 AD3d 1149, 1150 [2005]). We further reject the Special Fund's contentionthat the Board's decision was arbitrary and capricious for failing to follow its own precedent,finding the cases cited in support of this contention to be factually distinguishable (see Matter of Malone v Bob BernhardtPaving, 1 AD3d 781, 782 [2003], affd 2 NY3d 756 [2004]; Matter of De LaConcha v Fordham Univ., 292 AD2d 662, 664 [2002]).
Mercure, J.P., Rose, Lahtinen and Kavanagh, JJ., concur. Ordered that the decision isaffirmed, without costs.