Opinion
02-11-2016
In the Matter of the Claim of Kevin REDDIEN, Respondent, v. JOSEPH DAVIS INC. et al., Appellants, and Special Fund for Reopened Cases, Respondent. Workers' Compensation Board, Respondent.
Williams & Williams, Buffalo (Jared L. Garlipp of counsel), for appellants. Steven M. Licht, Special Funds Conservation Committee, Albany (Jill B. Singer of counsel), for Special Fund for Reopened Cases, respondent.
Williams & Williams, Buffalo (Jared L. Garlipp of counsel), for appellants.
Steven M. Licht, Special Funds Conservation Committee, Albany (Jill B. Singer of counsel), for Special Fund for Reopened Cases, respondent.
Before: PETERS, P.J., GARRY, EGAN Jr., DEVINE and CLARK, JJ.
DEVINE, J.Appeal from a decision of the Workers' Compensation Board, filed October 22, 2014, which ruled that Workers' Compensation Law § 25–a is inapplicable to claimant's award of workers' compensation benefits.
Claimant suffered work-related injuries to his back and left wrist in July 1999 and was awarded workers' compensation benefits. In 2001, by stipulation of the parties, a Workers' Compensation Law Judge found that claimant had a 21.25% schedule loss of use of his left hand. In 2011, claimant sought treatment for lumbar radiculopathy and the employer's workers' compensation carrier thereafter filed a request for further action, seeking to transfer liability for the claim to the Special Fund for Reopened Cases pursuant to Workers' Compensation Law § 25–a. The Workers' Compensation Board ultimately determined that the case was never truly closed and, therefore, denied the transfer of liability to the Special Fund. This appeal ensued.
There was no stipulation as to claimant's back, and the Workers' Compensation Law Judge did not address that issue.
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We affirm. "Liability shifts to the Special Fund when an application to reopen a case is made after a lapse of seven years from the date of the injury and three years from the date of the last payment of compensation, upon a showing that the case has been truly closed" (Matter of Hunter v. Tops Mkt., Inc., 125 A.D.3d 1092, 1093, 4 N.Y.S.3d 323 [2015] [internal quotation marks and citations omitted]; see Matter of Porter v. New York State Elec. & Gas Corp., 113 A.D.3d 987, 988, 979 N.Y.S.2d 199 [2014] ). "Whether a case is truly closed is a factual determination for the Board to resolve based primarily upon whether any further proceedings are contemplated with regard to issues concerning the payment of compensation" (Matter of Hosey v. Central N.Y. DDSO, 91 A.D.3d 993, 994, 936 N.Y.S.2d 363 [2012] [citations omitted]; accord Matter of Pankiw v. Eastman Kodak Co., 123 A.D.3d 1388, 1389, 1 N.Y.S.3d 399 [2014] ). Here, claimant's treating physician for his back injury opined in 2000 and 2001 that claimant suffered from a causally-related permanent partial disability of his back. Inasmuch as this issue of permanency had not been addressed as of the time of the carrier's request to transfer liability to the Special Fund, substantial evidence supports the Board's decision that the case was not truly closed and that Workers' Compensation Law § 25–a did not apply (see Matter of Pankiw v. Eastman Kodak Co., 123 A.D.3d at 1389–1390, 1 N.Y.S.3d 399 ; Matter of Hosey v. Central N.Y. DDSO, 91 A.D.3d at 994–995, 936 N.Y.S.2d 363 ; Matter of Carubia v. Colt Indus. [Crucible Steel], 12 A.D.3d 827, 828, 783 N.Y.S.2d 891 [2004] ).
ORDERED that the decision is affirmed, without costs.
PETERS, P.J., GARRY, EGAN JR. and CLARK, JJ., concur.