Opinion
February 13, 1986
Appeal from the Workers' Compensation Board.
At issue is whether the Workers' Compensation Board erred in finding that the June 9, 1971 closing of claimant's compensation case, pending the outcome of a third-party action, was not a true closing so as to extend the time for filing a claim for reimbursement from the Special Disability Fund under Workers' Compensation Law § 15 (8). The employer argues that the Board erred in applying a rigid "true closing" requirement to Workers' Compensation Law § 15 (8) and that, in any event, the finding that there had been no true closing is not supported by substantial evidence. We reject both arguments.
The employer's first argument is predicated upon its claim that the standards for a "true closing" developed in cases under Workers' Compensation Law §§ 25-a and 123 are inapplicable to cases which arise under section 15 (8). However, as we pointed out in Matter of Hirschhorn v. L N Fruit Produce ( 43 A.D.2d 1007), "[t]he critical test in each instance is whether the case was, in fact, closed, a factual matter clearly within the province of the board to determine". Since the closing pending the outcome of the third-party action in this case contemplated further proceedings, it cannot be said that the Board's finding is irrational.
Decisions affirmed, with costs to the Special Disability Fund. Mahoney, P.J., Kane, Casey, Weiss and Levine, JJ., concur.