| Matter of Riley v P&V Sadowski Constr. |
| 2013 NY Slip Op 01889 [104 AD3d 1039] |
| March 21, 2013 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Joseph Riley, Appellant, vP&V Sadowski Construction, Respondent, and Special Fund for Reopened Cases,Respondent. Workers' Compensation Board, Respondent. |
—[*1] Steven M. Licht, Special Funds Conservation Committee, Albany (Jill B. Singer ofcounsel), for Special Fund for Reopened Cases, respondent.
Stein, J. Appeal from a decision of the Workers' Compensation Board, filedNovember 30, 2011, which ruled that the reopening of the claim was barred by Workers'Compensation Law § 123.
Claimant sustained a work-related injury to his right knee in 1990 for which heobtained a schedule loss of use award. His condition worsened following a 2003 injuryand, in September 2008, a Workers' Compensation Law Judge (hereinafter WCLJ) foundthat the claim was reopened—effective August 2006—and shifted liabilityto the Special Fund for Reopened Cases. Thereafter, in a February 2009 decision, anotherWCLJ attributed 70% of claimant's overall disability to the 1990 injury and authorizedright knee replacement surgery. When claimant [*2]sought further benefits after undergoing the surgery inJanuary 2011,[FN1]the Special Fund argued that the claim had been truly closed in April 2009 followingauthorization for the surgery, and that any additional awards would be untimely pursuantto Workers' Compensation Law § 123. Although a WCLJ found otherwise, uponreview the Workers' Compensation Board ultimately agreed with the Special Fund andreversed the decision of the WCLJ. Claimant now appeals, and we reverse.
Workers' Compensation Law § 123 prohibits an award of benefits against theSpecial Fund "after a lapse of eighteen years from the date of the injury or death and alsoa lapse of eight years from the date of the last payment of compensation" (see Matterof Zechmann v Canisteo Volunteer Fire Dept., 85 NY2d 747, 751 [1995]). However,such statutory bar only applies if the claimant's case was truly closed, a factual issue forthe Board that depends upon whether "further proceedings, such as the submission ofadditional medical evidence, were contemplated" at the time of the purported closing (Matter of Ford v New York CityTr. Auth., 27 AD3d 792, 794 [2006], lv dismissed 7 NY3d 741 [2006];accord Matter of Runge vNational Baseball League, 93 AD3d 1015, 1016 [2012]; see Matter ofZechmann v Canisteo Volunteer Fire Dept., 85 NY2d at 751; Matter of Carubia v Colt Indus.[Crucible Steel], 12 AD3d 827, 828 n [2004]). The test is whether furtherproceedings were contemplated, not whether they were actually planned (see Matter of Barker v BuffaloColor Corp., 32 AD3d 1138, 1139 [2006]; Matter of Pegoraro v TessyPlastics Corp., 287 AD2d 909, 910 [2001], lv dismissed and denied 98NY2d 669 [2002]).
Here, the Board's bare summary conclusion that there was a true closing of the caseon April 6, 2009 and that no further action was contemplated at that time lacks anyfactual support and, in fact, is arguably contradicted by the record. The April 2009decision relied upon by the Board[FN2]simply stated that the matter was "[p]ending outcome of surgery on right knee. Nofurther action is planned by the Board at this time,"[FN3]and provides no information as to whether further Board action was contemplated oncethe outcome of claimant's surgery was determined (see Matter of Hartwell v Amphenol Interconnect Prods., 51AD3d 1245, 1247 [2008]; Matter of Bates v Finger Lakes Truck Rental, 41 AD3d957, 959 [2007]). We note that, two months prior to the April 2009 decision reliedupon by the Board, the WCLJ issued a decision authorizing claimant's knee surgery andcontinuing the cases "to make awards in accordance with this decision, subject to anycredits."[FN4][*3]
Considering the nature of the surgery beingrequested, and the fact that medical examinations of claimant in October and November2008 revealed that claimant had a moderate partial disability to his right knee, the Board'sconclusion that no further proceedings were contemplated in April 2009 when surgerywas authorized is dubious and, more importantly, is completely lacking in any recordsupport (compare Matter ofNanni v Source Corp., 98 AD3d 1225, 1227 [2012]). Under thesecircumstances, we find that the Board's determination that the April 2009 decisionconstituted a true closing was not supported by substantial evidence and must be reversed(see Matter of Granberry vJCCA Edenwald, Inc., 33 AD3d 1102, 1103 [2006]).
Peters, P.J., Garry and Egan Jr., JJ., concur. Ordered that the decision is reversed,without costs, and matter remitted to the Workers' Compensation Board for furtherproceedings not inconsistent with this Court's decision.
Footnote 1: The record is unclear asto why the surgery was delayed.
Footnote 2: Given the sparse recordbefore us, the purpose of the hearing on the date of that decision is unclear. However,there is no indication that any testimony was taken or, indeed, that anyone actuallyappeared on that date.
Footnote 3: This language has beeninterpreted as indicating an inactive status (see Matter of Hartwell v Amphenol Interconnect Prods., 51AD3d 1245, 1247 [2008]; Matter of Granberry v JCCA Edenwald, Inc., 33 AD3d1102, 1103 [2006]) and, thus, does not necessarily support a finding that the casewas truly closed.
Footnote 4: This February 2009decision apparently followed a hearing at which testimony was taken regarding the issuesof apportionment and degree of disability with respect to two separate claims. However,the transcript of this hearing does not appear in the record.