| Matter of Hunter v Tops Mkt., Inc. |
| 2015 NY Slip Op 01225 [125 AD3d 1092] |
| February 11, 2015 |
| Appellate Division, Third Department |
[*1]
| In the Matter of the Claim of Darlene Hunter,Claimant, v Tops Market, Inc., et al., Appellants, and Special Fund forReopened Cases, 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. Singer ofcounsel), for Special Fund for Reopened Cases, respondent.
Devine, J. Appeal from a decision of the Workers' Compensation Board, filedDecember 26, 2013, which ruled that claimant's case was not truly closed for the purposeof shifting liability to the Special Fund for Reopened Cases pursuant to Workers'Compensation Law § 25-a.
Claimant filed a workers' compensation claim, which was established for acausally-related occupational disease involving right carpal tunnel syndrome, with a dateof disablement in May 2005. Claimant underwent right carpal tunnel release in 2007. A2010 nerve conduction study revealed possible mild left carpal tunnel syndrome as well.As reflected in a 2011 doctor's progress report submitted to the Workers' CompensationBoard, claimant's doctor subsequently diagnosed her with continued carpal tunnelsyndrome in her right hand, and carpal tunnel syndrome in her left hand. Shortlythereafter, the Board found a 10% schedule loss of use of claimant's right hand, but didnot address the diagnosis of carpal tunnel syndrome in her left [*2]hand. In September 2012, the employer requested thatliability be transferred to the Special Fund for Reopened cases pursuant to Workers'Compensation Law § 25-a. The Board found that the case was never trulyclosed and, therefore, denied transfer of liability to the Special Fund. This appealensued.
We affirm. Liability shifts "to the Special Fund when an application to reopen a caseis made after a lapse of seven years from the date of the injury and three years from thedate of the last payment of compensation, upon a showing that the case has been trulyclosed" (Matter of Anticola vTops Mkts., 117 AD3d 1373, 1374 [2014] [internal quotation marks andcitations omitted]). "Whether a case has been 'truly closed' for the purposes of Workers'Compensation Law § 25-a is a factual issue to be resolved by the Board byevaluating if any further proceedings related to the payment of compensation werecontemplated at the time that the case was closed" (Matter of Porter v New York State Elec. & Gas Corp., 113AD3d 987, 988 [2014] [citations omitted]; see Matter of Hunt v Price Chopper/Golub Corp., 85 AD3d1522, 1523 [2011]). The employer and its third-party administrator argue thatliability should have transferred herein; they maintain that the case was truly closed at thetime that a 10% schedule loss of use was established for the right hand because the issueof left carpal tunnel syndrome had not yet been raised and, thus, no further action wascontemplated. As the Board found, however, the 2011 progress report of claimant'sdoctor indicated that claimant had left carpal tunnel syndrome, as well as right, andissues regarding the left hand remained unresolved at the time that the employer soughttransfer of liability. Accordingly, the Board's determination that the case was never trulyclosed is supported by substantial evidence and the transfer of liability was properlydenied (see Matter of Hosey vCentral N.Y. DDSO, 91 AD3d 993, 994-995 [2012]; Matter of Hunt v PriceChopper/Golub Corp., 85 AD3d at 1523; Matter of Aposporos v NYNEX, 46 AD3d 1016,1016-1017 [2007]; cf. Matter ofMucci v New York State Dept. of Corr., 98 AD3d 1223, 1224 [2012]; Matter of Palermo v Primo CoatCorp., 88 AD3d 1042, 1043 [2011], lv denied 18 NY3d 810[2012]).
Lahtinen, J.P., Garry and Rose, JJ., concur. Ordered that the decision is affirmed,without costs.