| Matter of Ercole v New York State Police |
| 2014 NY Slip Op 04550 [118 AD3d 1211] |
| June 19, 2014 |
| Appellate Division, Third Department |
[*1]
| In the Matter of the Claim of Steven A. Ercole,Respondent, v New York State Police et al., Respondents, and Special Fund forReopened Cases, Appellant. Workers' Compensation Board,Respondent. |
Steven M. Licht, Special Funds Conservation Committee, Albany (Jill B. Singer ofcounsel), for appellant.
William O'Brien, State Insurance Fund, Albany (Thomas A. Phillips of counsel), forNew York State Police and another, respondents.
Stein, J. Appeal from an amended decision of the Workers' Compensation Board,filed April 16, 2013, which, among other things, ruled that liability shifted to the SpecialFund for Reopened Cases pursuant to Workers' Compensation Law§ 25-a.
Claimant, an investigator with the employer, suffered compensable injuries to hisknees in 1996. He was awarded a schedule loss of use with respect to both legs and, in2000, the case was closed. Claimant's condition thereafter deteriorated and, in September2011, his orthopedic surgeon requested authorization to perform a bilateral total kneereplacement. The workers' compensation carrier for the employer did not respond to therequest within 30 days and, in November 2011, the Chair of the Workers' CompensationBoard issued "an order stating that such request is deemed authorized" (12 NYCRR325-1.4 [a] [8]; see Workers' Compensation Law § 13-a [5]).Claimant subsequently underwent the surgery.
A day after the Chair issued his order, the carrier requested that liability for the claimbe shifted to the Special Fund for Reopened Cases (see Workers' CompensationLaw § 25-a [1], [3]). In March 2012, a Workers' Compensation Law Judgeshifted liability to the Special Fund effective November 2, 2009, but held that the carrierremained liable for the surgical costs due to its failure to properly administer the requestfor authorization. The Board upheld the shift in liability, but also determined that theSpecial Fund was liable for the surgical expenses, and maintained that position in anamended decision. In so doing, it overruled prior Board precedent that permitted holdingthe carrier liable for such costs. The Special Fund now appeals.
We affirm. Workers' Compensation Law § 25-a (1) provides that, whereseven years have passed from the date of claimant's injury and three years have passedfrom the date of the last payment of compensation, "if an award is made it shallbe against the [S]pecial [F]und" (emphasis added). Both of those time periods haveundoubtedly been met in this case. The Board has previously observed, however, that acarrier with a pending application to shift liability may be tempted to delay in approvingnecessary medical expenses in order to avoid the complications of paying for them andlater seeking reimbursement from the Special Fund. In an effort to address that concern,the Board had held that, in certain instances, a carrier would be held liable for medicalexpenses that would otherwise be the responsibility of the Special Fund if it "hadattempted to delay payment for the surgery until after a determination was maderegarding the applicability of [Workers' Compensation Law] § 25-a, and notbased . . . on a good faith objection to the surgery" (Employer:Redwing, 2011 WL 6126316, *2, 2011 NY Wrk Comp LEXIS 8002, *4 [WCB No.8990 1736, Nov. 30, 2011]; see Employer: Allied Waste Indus., 2009 WL1298864, *3, 2009 NY Wrk Comp LEXIS 8770, *6-8 [WCB No. 5952 1403, May 4,2009]; Employer: New York Tel. Co., 2009 WL 1223500, *2, 2009 NY WrkComp LEXIS 8417, *3-4 [WCB No. 5710 9846, Apr. 23, 2009]).
In the decision at issue here, the Board discussed that precedent at length andoverruled it, which it was free to do given that it "set forth its reasons for doing so" andconsidered appropriate statutory and judicial authorities (Matter of Catapano v Jaw, Inc.,73 AD3d 1361, 1362 [2010]; accord Matter of Canfora v Goldman Sachs Group, Inc., 110AD3d 1123, 1124 [2013]; cf. Matter of Huff v Department of Corrections, 52 AD3d1003, 1004-1005 [2008]). Inasmuch as the interpretation of Workers' CompensationLaw § 25-a presents a question "of pure statutory reading and analysis,dependent only on accurate apprehension of legislative intent," we need not defer to theBoard's reading of the statute (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451,459 [1980]; see Matter ofFitzgerald v Berkshire Farm Ctr. & Servs. for Youth, 87 AD3d 353, 354[2011]). We nevertheless agree with the Board's present interpretation thereof.
"The purpose of [Workers' Compensation Law § ] 25-a is to saveemployers and insurance carriers from liability . . . for stale claims ofinjured employees" (Matter of Riley v Aircraft Prods. Mfg. Corp., 40 NY2d 366,369 [1976] [internal quotation marks and citation omitted]; see Matter of Fitzgerald vBerkshire Farm Ctr. & Servs. for Youth, 87 AD3d at 354-355). Workers'Compensation Law § 25-a (1) furthers that purpose by requiring that anyaward "shall be [made] against the [S]pecial [F]und" if the requisite time periodshave elapsed (emphasis added). As both the language and purpose of the statutedemonstrate, the carrier "has no further interest in [the] payment of the claim" onceliability has shifted to the Special Fund (Matter of De Mayo v Rensselaer PolytechInst., 74 NY2d 459, 462 [1989]; accord Matter of [*2]Fitzgerald v Berkshire Farm Ctr. & Servs. forYouth, 87 AD3d at 355; seeMatter of Castro v New York City Tr. Auth., 50 AD3d 1272, 1273 [2008]), and"the Board ha[s] no power to direct that the award be paid by the [carrier] instead of outof the [S]pecial [F]und" under those circumstances (Matter of Ryan v AmericanBridge Co., 243 App Div 496, 499-500 [1935], affd 268 NY 502 [1935]).Thus, the Board properly concluded that the statute does not permit a carrier to be heldliable for medical expenses incurred after liability has been shifted to the SpecialFund.
We have considered the remaining contentions of the Special Fund and find them tobe unpersuasive.
Peters, P.J., McCarthy and Egan Jr., JJ., concur. Ordered that the amended decision isaffirmed, without costs.