| Matter of Pankiw v Eastman Kodak Co. |
| 2014 NY Slip Op 09073 [123 AD3d 1388] |
| December 31, 2014 |
| Appellate Division, Third Department |
[*1]
| In the Matter of the Claim of Donald Pankiw,Claimant, v Eastman Kodak Company et al., Appellants, and Special Fund forReopened Cases, Respondent. Workers' Compensation Board,Respondent. |
Hamberger & Weiss, Rochester (Daniel P. Kuhn of counsel), forappellants.
Steven M. Licht, Special Funds Conservation Committee, Albany (Jill B. Singer ofcounsel), for Special Fund for Reopened Cases, respondent.
Garry, J. Appeal from a decision of the Workers' Compensation Board, filedFebruary 8, 2013, which ruled that claimant's case was not truly closed for the purpose ofshifting liability to the Special Fund for Reopened Cases pursuant to Workers'Compensation Law § 25-a.
In October 2004, claimant suffered work-related injuries to his back and left shoulderand was awarded workers' compensation benefits. Claimant's treating physician opined in2007 that claimant had sustained a 20% schedule loss of use of his left arm. In 2008,claimant raised the issue of a consequential injury to his right shoulder. By stipulation ofthe parties, including the Special Fund for Reopened Cases, which was liable forpayments related to a 1997 injury to claimant's right shoulder, a Workers' CompensationLaw Judge amended the 2004 claim to include a consequential injury to the rightshoulder, found that claimant had a 30% schedule loss of use of that shoulder andapportioned the claim related to the right shoulder pursuant to the [*2]stipulation.[FN*] In November 2011, claimant filed arequest for further action, stating that he was now disabled and was not receivingcompensation. A Workers' Compensation Law Judge transferred liability for the claim tothe Special Fund pursuant to Workers' Compensation Law § 25-a. Uponreview, the Workers' Compensation Board reversed and the employer and its carrierappeal.
We affirm. "Liability for compensation shifts to the Special Fund when anapplication to reopen a case is made after a lapse of seven years from the date of theinjury and three years from the date of the last payment of compensation, upon a showingthat the case has been truly closed" (Matter of Anticola v Tops Mkts., 117 AD3d 1373, 1374[2014] [internal quotation marks and citations omitted]). "Whether a case is truly closedis a factual determination for the Board to resolve based primarily upon whether anyfurther proceedings are contemplated with regard to issues concerning the payment ofcompensation" (Matter of Hoseyv Central N.Y. DDSO, 91 AD3d 993, 994 [2012] [citations omitted]; see Matter of Rathbun v D'EllaPontiac Buick GMC, Inc., 61 AD3d 1293, 1294-1295 [2009]). Here, althoughclaimant's treating physician opined in 2007 that claimant had a 20% schedule loss of useof his left arm, this issue was not addressed as of the date of the carrier's request to shiftliability to the Special Fund. Accordingly, the Board's decision that the case was not trulyclosed is supported by substantial evidence (see Matter of Hosey v Central N.Y.DDSO, 91 AD3d at 994-995; Matter of Carubia v Colt Indus. [Crucible Steel], 12 AD3d827, 828 [2004]; Matter of Knapp v Empire Aluminum Indus., 256 AD2d811, 811-812 [1998]). We have reviewed the remaining contentions and find them to beunpersuasive.
Peters, P.J., Stein, Egan Jr. and Devine, JJ., concur. Ordered that the decision isaffirmed, without costs.
Footnote *:Although the stipulationinitially attributed the 30% schedule loss of use to claimant's left arm, the parties made acorrection in an amended stipulation to reflect that the parties intended to stipulate to aschedule loss of use of claimant's right arm. There was no stipulation as to claimant's leftarm and the issue was not addressed by the Workers' Compensation Law Judge.