| Matter of Porter v New York State Elec. & Gas Corp. |
| 2014 NY Slip Op 00406 [113 AD3d 987] |
| January 23, 2014 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Gary Porter, Respondent, vNew York State Electric and Gas Corporation et al., Respondents, and Special Fund forReopened Cases, Appellant. Workers' Compensation Board,Respondent. |
—[*1] Buckner & Kourofsky, LLP, Rochester (Jacklyn M. Penna of counsel), for NewYork State Electric and Gas Corporation and another, respondents.
Peters, P.J. Appeal from a decision of the Workers' Compensation Board, filedNovember 5, 2012, which ruled that liability shifted to the Special Fund for ReopenedCases pursuant to Workers' Compensation Law § 25-a.
Claimant worked for the employer as a field service representative and, on May 1,2004, struck his head on a concrete beam in a customer's basement after reading a meter,causing injuries to his head, neck and back. He filed a claim for workers' compensationbenefits and, following a hearing, a Workers' Compensation Law Judge (hereinafterWCLJ) established the case for occupational disease to claimant's head, neck and back,referencing, among other things, [*2]medical testimonythat previously established claimant's case for injuries to his neck and back stemmingfrom a 1992 work-related accident. By stipulation of the parties following a 2008hearing, a WCLJ apportioned 22.5% of the liability for claimant's back and neck injuriesto the incident and indicated that no further action was planned. Thereafter, claimantcontinued to experience back problems, was diagnosed with severe biforaminal stenosisand continued to work, but was classified as partially disabled. He was treated with aseries of epidural injections. On October 26, 2010, the Chair of the Workers'Compensation Board authorized an MRI of claimant's cervical spine. On April 27, 2011,following a request by claimant's treating orthopedic surgeon, the Chair authorizedsurgery to be performed on claimant's lumbar spine.
On May 10, 2011, the workers' compensation carrier requested that payment ofbenefits be transferred to the Special Fund for Reopened Cases pursuant to Workers'Compensation Law § 25-a. Following a hearing, a WCLJ denied the request andfound that Workers' Compensation Law § 25-a was inapplicable. The Board,however, concluded that the April 27, 2011 order of the Chair constituted a true closingof the case and that liability shifted to the Special Fund under Workers' CompensationLaw § 25-a. The Board modified the WCLJ's decision accordingly and this appealby the Special Fund ensued.
"Workers' Compensation Law § 25-a (1) provides that liability shifts from thecarrier to the Special Fund when an application to reopen a closed case is made morethan seven years after the date of the injury and three years following the last payment ofbenefits" (Matter of Mucci vNew York State Dept. of Corr., 98 AD3d 1223, 1223 [2012] [citations omitted];see Matter of Hosey v CentralN.Y. DDSO, 91 AD3d 993, 994 [2012]). Where, as here, these statutory timeperiods have been satisfied, the shifting of liability will occur only if the case has been"truly closed" (Matter of Mucci v New York State Dept. of Corr., 98 AD3d at1223; see Matter of Hosey v Central N.Y. DDSO, 91 AD3d at 994). Whether acase has been "truly closed" for the purposes of Workers' Compensation Law §25-a is a factual issue to be resolved by the Board by evaluating if any furtherproceedings related to the payment of compensation were contemplated at the time thatthe case was closed, not whether they were actually planned (see Matter of Nanni v SourceCorp., 98 AD3d 1225, 1227 [2012]; Matter of Palermo v Primo Coat Corp., 88 AD3d 1042,1043 [2011], lv dismissed 18 NY3d 810 [2012]; see also Matter of Riley v P&VSadowski Constr., 104 AD3d 1039, 1039-1040 [2013]). The Board's decision inthis regard will be upheld if supported by substantial evidence (see Matter of Nanni vSource Corp., 98 AD3d at 1226; Matter of Palermo v Primo Coat Corp., 88AD3d at 1043).
Claimant continued to work prior to the surgery authorized by the Chair's April 27,2011 order. Indeed, the April 27, 2011 order finally resolved the issue of treatment withrespect to claimant's lumbar spine and made no mention of any further proceedings.Certainly, the submission of additional medical evidence was not contemplated at thattime (see Matter of Riley v P&V Sadowski Constr., 104 AD3d at 1039).Consistent with this Court's reasoning in Matter of Rathbun v D'Ella Pontiac Buick GMC, Inc. (61 AD3d1293 [2009]), we find that substantial evidence supports the Board's decision thatthe Chair's April 27, 2011 order constituted a true closing of the case. A contrary result isnot compelled by the subsequent change in claimant's medical condition and his need tohave further surgery following the April 27, 2011 order (see Matter of Nanni vSource Corp., 98 AD3d at 1227; Matter of Rathbun v D'Ella Pontiac BuickGMC, Inc., 61 AD3d at 1294). Furthermore, the cases relied upon by the SpecialFund are factually distinguishable (see Matter of Riley v P&V SadowskiConstr., supra; Matter of Donnelly v Alden Cent. Schools, 83 AD3d 1368[2011]; Matter of Barker vBuffalo Color Corp., 32 AD3d 1138 [2006]) and do not persuade us that adifferent conclusion is warranted under the [*3]circumstances presented here.
Rose, McCarthy and Garry, JJ., concur. Ordered that the decision is affirmed,without costs.