| Matter of Anticola v Tops Mkts. |
| 2014 NY Slip Op 03906 [117 AD3d 1373] |
| May 29, 2014 |
| Appellate Division, Third Department |
[*1]
| In the Matter of the Claim of Joseph Anticola,Respondent, v Tops Markets et al., Appellants, and Special Fund for ReopenedCases, Respondent. Workers' Compensation Board,Respondent. |
Personius, Palmer & Bocek, Elmira (Timothy J. Bocek of counsel), forappellants.
Steven M. Licht, Special Funds Conservation Committee, Albany (Jill B. Singerof counsel), for Special Fund for Reopened Cases, respondent.
Eric T. Schneiderman, Attorney General, New York City (Iris A. Steel ofcounsel), for Workers' Compensation Board, respondent.
Lahtinen, J. Appeal from a decision of the Workers' Compensation Board, filedMarch 1, 2013, [*2]which ruled, among other things, thatclaimant's case was not truly closed for the purpose of shifting liability to the SpecialFund for Reopened Cases pursuant to Workers' Compensation Law§ 25-a.
Claimant established a work-related injury to his lower back and, in December 2000,began to receive workers' compensation benefits from the self-insured employer and itsthird-party administrator (hereinafter collectively referred to as the employer). Claimantcontinued to receive benefits for intermittent lost time resulting from his injury, whichincluded, as relevant to this appeal, a May 2006 finding by a Workers' CompensationLaw Judge (hereinafter WCLJ) that claimant was temporarily partially disabledbeginning February 6, 2006. However, a subsequent decision by the Workers'Compensation Board rescinded all awards after February 6, 2006 pending furtherdevelopment of the record. Thereafter, an August 28, 2007 WCLJ decision held inabeyance any awards for the period between February 6, 2006 and October 28, 2006. Asubsequent WCLJ decision, rendered August 14, 2008, failed to address the period heldin abeyance but, as relevant here, awarded claimant benefits for a temporary totaldisability between January 21, 2008 and April 1, 2008 and stated that no further actionwas planned by the Board.
In August 2011, at a hearing instigated by the employer's objection to certaintreatments, the issue of the transfer of liability to the Special Fund for Reopened Casespursuant to Workers' Compensation Law § 25-a was first raised. TheWCLJ, noting that there was still a period in 2006 for which benefits were being held inabeyance, found that a transfer of liability was premature, but placed the Special Fund onnotice. Thereafter, in January 2012, the employer submitted a request for further action,citing the fact that it had new documentation regarding the period held in abeyance,namely, a letter from claimant's counsel stating that the relevant period could be markedfor no compensable lost time. The employer requested that the Board either address theissue through an administrative decision or schedule a hearing. Accordingly, a hearingwas scheduled for February 2012, after which a WCLJ decision found no compensablelost time for the period between February 2006 and October 2006. That decision alsoawarded claimant benefits for the period between January 23, 2012 and February 14,2012, as he had again lost time as the result of his work-related injury.
The employer again sought further action in March 2012, seeking to shift liability tothe Special Fund. Finding that there was never a true closure in the case, a WCLJ againfound transfer of liability to the Special Fund to be premature. On appeal, the Boarddetermined that, because awards for the period in 2006 had been held in abeyance andresolution of that issue was not affected until February 2013—after claimant hadagain started to lose compensable time—the case had never truly been closed.Accordingly, the Board affirmed the WCLJ's finding that Workers' Compensation Law§ 25-a liability was premature. The employer now appeals.
We affirm. Liability for compensation shifts to the Special Fund when an applicationto reopen a case is made after a lapse of seven years from the date of the injury and threeyears from the date of the last payment of compensation, upon a showing that the casehas been " 'truly closed' " (Matter of Porter v New York State Elec. & Gas Corp., 113AD3d 987, 988 [2014], [*3]quoting Matter of Mucci v New York StateDept. of Corr., 98 AD3d 1223, 1223 [2012]; see Workers' CompensationLaw § 25-a [1]). Whether a case has been truly closed is a factual questionto be resolved by the Board based primarily upon its determination as to whether furtherproceedings were contemplated (see Matter of Mucci v New York State Dept. ofCorr., 98 AD3d at 1223-1224; Matter of Hosey v Central N.Y. DDSO, 91 AD3d 993, 994[2012]). Such decision of the Board will not be disturbed when supported by substantialevidence (see Matter of Porter v New York State Elec. & Gas Corp., 113AD3d at 988; Matter of Nanni vSource Corp., 98 AD3d 1225, 1226 [2012]). Notably, cases in which thepayment of compensation has been held in abeyance pending the presentment of furthermedical evidence have been held to have not been truly closed (see Matter of Hammond vDutchess Bldg. Specialists, 83 AD3d 1276, 1278 [2011]; Matter of Granberry v JCCAEdenwald, Inc., 33 AD3d 1102, 1103 [2006]).
Here, the employer contends that the claim was truly closed by the WCLJ decisionfiled on August 14, 2008. However, this contention ignores the fact that, pursuant to theAugust 28, 2007 WCLJ decision, compensation for the period between February 2006and October 2006 had been held in abeyance and was, as of yet, unresolved. Althoughthe employer further argues that the case should have been considered truly closedbecause no further evidence was submitted regarding the periods held in abeyance, thatcontention is belied by the fact that the employer itself affirmatively addressed the issuein January 2012, evincing the fact that said compensation was still at issue. Accordingly,we find that substantial evidence supports the Board's decision that the case was nevertruly closed and, thus, transfer of liability to the Special Fund would have been premature(see Matter of Hammond v Dutchess Bldg. Specialists, 83 AD3d at 1278; see generally Matter of Hartwell vAmphenol Interconnect Prods., 51 AD3d 1245, 1247 [2008]). We haveexamined the employer's remaining contentions and find them to be without merit.
Peters, P.J., Garry and Rose, JJ., concur. Ordered that the decision is affirmed,without costs.