| Matter of Nanni v Source Corp. |
| 2012 NY Slip Op 06358 [98 AD3d 1225] |
| September 27, 2012 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Patty S. Nanni,Respondent, v Source Corporation et al., Respondents, and Special Fund for ReopenedCases, Appellant. Workers' Compensation Board, Respondent. |
—[*1] Gitto & Niefer, Binghamton (Jason M. Carlton of counsel), for Source Corporation andanother, respondents.
Rose, J. Appeal from a decision of the Workers' Compensation Board, filed July 5, 2011,which, among other things, transferred liability to the Special Fund for Reopened Cases pursuantto Workers' Compensation Law § 25-a.
Claimant suffered a work-related right carpel tunnel syndrome and right thumb injury inJanuary 2003 and was awarded workers' compensation benefits. Claimant underwent surgery onher right hand and, shortly thereafter, returned to her regular employment duties. In 2004,claimant was awarded a 7.5% schedule loss of use of her right hand based upon her physician'sopinion regarding her post-surgery status, and medical treatment and care was authorized, asneeded, with no further action to be taken by the Workers' Compensation Board. Final payment[*2]of that schedule loss of use award was made in August 2004.
In 2006, a request by claimant's physician for additional surgery on claimant's right hand wasapproved and claimant, again, underwent the surgery. Claimant again resumed employmentwithout restrictions and was referred to physical therapy. In March 2008, the case was reopenedand directed to travel with an associated and controverted claim for a 2006 work-related rightelbow injury. By decision dated August 4, 2008, the Board, although noting that there is apossibility of permanency based upon the nature of the injury, found insufficient evidence of anysuch disability and closed the case based upon prior findings with no further action planned.
Thereafter, in July 2010, the case was reopened to consider an increased schedule loss of useor permanency to claimant's right hand. The workers' compensation carrier, in turn, requestedthat liability be shifted to the Special Fund for Reopened Cases pursuant to Workers'Compensation Law § 25-a. Following a hearing, a Workers' Compensation Law Judge(hereinafter WCLJ) found a 25.2% schedule loss of use of claimant's right hand, awardedbenefits and discharged the Special Fund. The carrier sought full Board review to the extent thatthe WCLJ found Workers' Compensation Law § 25-a inapplicable. By decision dated July7, 2011, the Board modified the WCLJ decision and found that the case was truly closed bydecision dated August 4, 2008 and shifted liability to the Special Fund. The Special Fund nowappeals.
We affirm. "Workers' Compensation Law § 25-a shifts liability for a claim 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 Palermo vPrimo Coat Corp., 88 AD3d 1042, 1042 [2011] [internal quotation marks and citationsomitted], lv denied 18 NY3d 810 [2012]). "The determination of whether a case is trulyclosed for purposes of Workers' Compensation Law § 25-a is an issue of fact to beresolved by the Board, and its determination will not be disturbed if supported by substantialevidence" (Matter of Carubia v ColtIndus. [Crucible Steel], 12 AD3d 827, 828 [2004] [internal quotation marks andcitations omitted]). A case is truly closed if no further issues related to the payment ofcompensation were outstanding at the time the matter was closed (see Matter of Palermo vPrimo Coat Corp., 88 AD3d at 1043; Matter of Bush v Montgomery Ward, 73 AD3d 1313, 1313-1314[2010]).
Here, although the Board acknowledged the possibility of permanency in the August 4, 2008decision, "[t]he fact that a 'claimant's condition may change or worsen in the future' does notpreclude a finding that the claim is truly closed" (Matter of Palermo v Primo Coat Corp.,88 AD3d at 1042, quoting Matter ofBates v Finger Lakes Truck Rental, 41 AD3d 957, 959 [2007]; see Matter of Rathbun v D'Ella PontiacBuick GMC, Inc., 61 AD3d 1293, 1294 [2009]). The only potential issue following theAugust 4, 2008 decision was whether a schedule loss of use increase would arise in the event thatclaimant's condition worsened. The record establishes that no issue of increased loss of use orpermanency was raised after her 2006 surgery until the Board received the medical opinion ofclaimant's physician on May 14, 2010. Upon our review of the record, we find that the Board'sdecision that the case was truly closed by the August 4, 2008 decision is supported by substantialevidence. Accordingly, given the lapse of the requisite statutory time period since the injuryoccurred and the final compensation payment, the Board's decision to shift liability to the SpecialFund will not be disturbed.
We have reviewed the remaining contentions and find them to be unpersuasive.
Peters, P.J., Spain, McCarthy and Egan Jr., JJ., concur. Ordered that the decision is affirmed,without costs.