| Matter of Schroeder v US Foodservice |
| 2013 NY Slip Op 04088 [107 AD3d 1135] |
| June 6, 2013 |
| Appellate Division, Third Department |
| In the Matter of the Claim of David Schroeder, Respondent,v US Foodservice et al., Respondents, and Special Fund for Reopened Cases, Appellant.Workers' Compensation Board, Respondent. |
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Spain, J. Appeal from a decision of the Workers' Compensation Board, filed June 14,2012, which ruled that Workers' Compensation Law § 25-a is applicable toclaimant's award of workers' compensation benefits.
In March 2003, claimant suffered a work-related injury to his back and was awardedworkers' compensation benefits. Claimant returned to work the following month and thecase was subsequently closed. Claimant continued to work for the employer and receivedsymptomatic medical treatment for his work-related injury through his retirement in2009. In August 2010, the employer sought to shift liability for the claim to the SpecialFund for Reopened Cases pursuant to Workers' Compensation Law § 25-a. At ahearing, the Special Fund sought further development of the record, which did notinclude either an affidavit or testimony by claimant with respect to whether claimant hadreceived any advance payments from his employer that could prevent the shifting ofliability to the Special Fund. The Workers' Compensation Law Judge denied the requestand determined that the last compensation payment was made in April 2003 and thatliability shifted to the Special Fund as of August 2010. On review, the Workers'Compensation Board affirmed, finding that there was no evidentiary basis for the SpecialFund's argument that advance payments may have been made. The Special Fund nowappeals. We reverse.
Workers' Compensation Law § 25-a provides for the transfer of liability to theSpecial Fund "when an application to reopen a closed case is made more than sevenyears from the date of injury and more than three years after the last payment ofcompensation" (Matter ofMcLean v Amsterdam Nursing Home, 72 AD3d 1309, 1310 [2010]; seeWorkers' Compensation Law § 25-a [1]; Matter of Iannaci v Independent Cement Corp., 66 AD3d1194, 1195 [2009]). Advance payments that are made voluntarily during the relevanttime frame, in recognition of an employer's liability, are considered compensation andwill prevent the shifting of liability to the Special Fund (see Matter of McLean vAmsterdam Nursing Home, 72 AD3d at 1310; Matter of Fuentes v New York City Hous. Auth., 53 AD3d873, 874 [2008]). Notably, "evidence that a claimant received full wages despiteperforming limited or light duties may result in a finding that advance payments [ofcompensation] have been made" (Matter of Guidice v Herald Co., 88 AD3d 1175,1176-1177 [2011] [internal quotation marks and citation omitted]). Whether an advancepayment of compensation was made to the claimant is a factual issue for the Board toresolve and, "its determination . . . , if supported by substantial evidence inthe record as a whole, will not be disturbed" (id. at 1176; see Matter of Stranahan v CampAdirondack, 78 AD3d 1369, 1370 [2010]).
The record contains numerous progress reports from claimant's chiropractorindicating that, from December 2005 until his retirement in March 2009, claimantworked for the employer but was disabled from regular duty. Claimant did not testify orsubmit an affidavit, and the record is otherwise silent regarding whether he performedlighter duties and, if so, whether he received full wages; "in the absence of any proof. . . the Board could not assess whether an advance payment was made forthe purposes of determining the applicability of Workers' Compensation Law §25-a" (Matter of Iannaci v Independent Cement Corp., 66 AD3d at 1196). Thus,the Board's decision is not supported by substantial evidence and, accordingly, we mustremit the matter for further development of the record with respect to this issue (seeMatter of Guidice v Herald Co., 88 AD3d at 1177; Matter of Iannaci vIndependent Cement Corp., 66 AD3d at 1196).[FN*]
Rose, J.P., Lahtinen and Garry, 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 *: The Board's reliance onMatter of Brock v Great A & P Tea Co. (84 AD2d 645 [1981]) was misplaced.There, the "employer conceded that [the] claimant was paid for lost time within threeyears of the application to reopen with knowledge that the lost time was a result of the. . . injury" (id. at 646). We then held that payments made through asick-leave plan or accumulated sick-leave are not advance payments of compensationwithin the meaning of Workers' Compensation Law § 25-a (id.; seeMcLean v Amsterdam Nursing Home, 72 AD3d at 1311). The Board here correctlynoted that the record does not indicate that claimant was paid for lost time; indeed, thisargument was never advanced by the Special Fund. The Board, however, failed toaddress the issue that was raised by the Special Fund and addressed herein,namely, whether claimant worked restricted or lighter duties while receiving fullcompensation from the employer, which would constitute advanced payments underWorkers' Compensation Law § 25-a (see Matter of Guidice v Herald Co.,88 AD3d at 1177; Matter of Iannaci v Independent Cement Corp., 66 AD3d at1196).