| Matter of Canfora v Goldman Sachs Group, Inc. |
| 2013 NY Slip Op 06414 [110 AD3d 1123] |
| October 3, 2013 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Barbara Canfora, Respondent,v Goldman Sachs Group, Inc. et al., Respondents, and Special Fund for Reopened Cases,Appellant. Workers' Compensation Board, Respondent. |
—[*1] Weiss, Wesler & Wornow, PC, New York City (Lauren M. Bilasz of counsel), forGoldman Sachs Group, Inc. and another, respondents. Eric T. Schneiderman, Attorney General, New York City (Iris A. Steel of counsel),for Workers' Compensation Board, respondent.
Rose, J.P. Appeal from a decision of the Workers' Compensation Board, filed May17, 2012, which, upon remittal, among other things, transferred liability to the SpecialFund for Reopened Cases pursuant to Workers' Compensation Law § 25-a.
Claimant suffered a compensable work-related injury on May 2, 2001. On May 29,[*2]2008, the employer's workers' compensation carrierrequested that liability be transferred to the Special Fund for Reopened Cases pursuant toWorkers' Compensation Law § 25-a. The Workers' Compensation Boardultimately transferred liability to the Special Fund retroactively, with an effective date ofMay 30, 2006. Upon appeal, this Court reversed the Board's determination and remittedthe matter for reconsideration, citing the Board's failure to follow a prior decision whichstated that liability may not transfer to the Special Fund until the first day after the threeand seven-year time limits set forth in Workers' Compensation Law § 25-a haveexpired, or give an explanation for departing from this precedent (93 AD3d 988 [2012]).
Upon remittal, the Board again determined that liability transferred to the SpecialFund on May 30, 2006, concluding that Workers' Compensation Law § 25-a doesnot preclude a transfer of liability retroactive to a period of time prior to the lapse ofseven years after the underlying injury and that any prior decisions by it to the contrarywould not be followed. The Special Fund appeals.
We affirm. Clearly, "the Board is free to alter a course previously set out in itsdecisions, [provided] it set[s] forth its reasons for doing so" (Matter of Catapano v Jaw,Inc., 73 AD3d 1361, 1362 [2010]; see Matter of Williams v Lloyd Gunther El. Serv., Inc., 104AD3d 1013, 1015 [2013]). Pursuant to Workers' Compensation Law § 25-a,liability is transferred to the Special Fund "when an application to reopen a closed case ismade more than seven years from the date of injury and more than three years after thelast payment of compensation" (Matter of McLean v Amsterdam Nursing Home, 72 AD3d1309, 1310 [2010]; see Workers' Compensation Law § 25-a [1]).Here, there is no dispute that these conditions have been met and the only issue before usis whether the Board properly transferred liability to the Special Fund retroactively to aperiod of time prior to the lapse of seven years following claimant's injury.
While the retroactive transfer of liability to the Special Fund is limited to no longerthan two years prior to the date of the application to reopen (see Workers'Compensation Law § 25-a [1-a]; Matter of Lynch v Buffalo Bills, Inc., 62 AD3d 1061, 1063[2009]), there is no statutory requirement that there be a seven-year lapse from the date ofa claimant's injury prior to the date of a retroactive transfer of liability (seeWorkers' Compensation Law § 25-a [1-a]). Accordingly, we conclude that theBoard's determination, that Workers' Compensation Law § 25-a does not precludea retroactive transfer of liability to the Special Fund to a time period within seven yearsof the underlying injury, is not unreasonable, irrational or inconsistent with the purposeof the statute (see generally Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451,459 [1980]; Matter of Scally vRavena Coeymans Selkirk Cent. School Dist., 31 AD3d 836, 837 [2006]), andthe Board has set forth sufficient reasons for no longer following any prior decisions tothe contrary.
Spain, Garry and Egan Jr., JJ., concur. Ordered that the decision is affirmed, withoutcosts.[*3]