| Matter of Thurston v Consolidated Edison Co. of N.Y.,Inc. |
| 2014 NY Slip Op 02125 [115 AD3d 1143] |
| March 27, 2014 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Thomas J. Thurston,Respondent, v Consolidated Edison Company of N.Y., Inc., et al., Appellants, andSpecial 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.
McCarthy, J. Appeal from a decision of the Workers' Compensation Board, filedNovember 29, 2012, which ruled, among other things, that liability for the claim did notshift to the Special Fund for Reopened Cases pursuant to Workers' Compensation Law§ 25-a.
In 1982, claimant injured his back in a work-related accident and, subsequently, aworkers' compensation claim was established and he was classified as permanentlypartially disabled. Claimant was paid intermittent lost time benefits covering periodsbetween 1982 and 1999 and, in January 2000, his case was closed. In May 2011, theself-insured employer sought to transfer liability for the claim to the Special Fund forReopened Cases pursuant to Workers' Compensation Law § 25-a. Followinghearings, a Workers' Compensation Law Judge found that liability was properlytransferred to the Special Fund and, further, that Workers' Compensation Law §123 applied to foreclose any further payment of indemnity benefits. Claimant and theSpecial Fund appealed and the Workers' Compensation Board reversed, finding that theemployer had made an advance payment of compensation within the last three years and,as such, remained liable for the claim. The employer and its third-party administratornow appeal.
We reverse. Pursuant to Workers' Compensation Law § 25-a, the transfer ofliability for a claim is appropriate " 'when an application to reopen a closed case is mademore than seven years from the date of injury and more than three years after the lastpayment of compensation' " (Matter of Schroeder v US Foodservice, 107 AD3d 1135,1136 [2013], quoting Matter ofMcLean v Amsterdam Nursing Home, 72 AD3d 1309, 1310 [2010]). Paymentsthat are made voluntarily, and in recognition of the employer's liability, are consideredadvance compensation and will prevent the transfer of liability to the Special Fund(see Matter of Schroeder v US Foodservice, 107 AD3d at 1136; Matter ofMcLean v Amsterdam Nursing Home, 72 AD3d at 1310; Matter of Fuentes v New York CityHous. Auth., 53 AD3d 873, 874 [2008]). However, because acknowledgment ofliability by the employer is essential to the determination, "payments made pursuant to asick leave plan regardless of cause are not advance payments of compensation"(Matter of Feldman v Presbyterian Hosp., 114 AD2d 549, 550 [1985]; see Matter of Lauritano vConsolidated Edison Co. of N.Y., Inc., 59 AD3d 757, 758 [2009]; Matter ofBrock v Great A & P Tea Co., 84 AD2d 645, 646 [1981]).
Here, claimant testified that, although he continued to lose two or three weeks oftime from work per year due to his compensable injury, his wages were paid pursuant tothe employer's sick leave policy, which made no distinction between time lost due tosickness or to injury. The existence of that policy was confirmed by the testimony of abenefits specialist for the employer. Accordingly, the Board's determination that theemployer made advance payments of compensation was error (see Matter of Brock vGreat A & P Tea Co., 84 AD2d at 646; compare Matter of Lauritano vConsolidated Edison Co. of N.Y., Inc., 59 AD3d at 759; Matter of Fuentes vNew York City Hous. Auth., 53 AD3d at 874). The Special Fund's remainingcontentions are unpersuasive.
Peters, P.J., Stein and Rose, 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.