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In the Matter of the Claim of v. Walmart

State of New York Supreme Court, Appellate Division Third Judicial Department


March 24, 2011

IN THE MATTER OF THE CLAIM OF LINDA BEARDSLEY, CLAIMANT,
v.
WALMART, RESPONDENT, AND
CAMBRIDGE INTEGRATED SERVICES, ALSO KNOWN AS XCHANGING, APPELLANT. WORKERS' COMPENSATION BOARD, RESPONDENT.

Appeal from a decision of the Workers' Compensation Board, filed December 28, 2009, which directed the employer's workers' compensation carrier to make a deposit into the aggregate trust fund pursuant to Workers' Compensation Law § 27 (2).

The opinion of the court was delivered by: Garry, J.

Calendar Date: February 7, 2011

Before: Spain, J.P., Lahtinen, Garry and Egan Jr., JJ.

MEMORANDUM AND ORDER

Claimant sustained a work-related injury in 2002 that was ultimately found to constitute a permanent partial disability in 2009. As her injury predated the 2007 amendment to Workers' Compensation Law § 15 (3) (w), there is no "cap on the number of weeks for which . . . claimant can receive that subdivision's non-schedule permanent partial disability . . . benefits" (Matter of Proulx v Burnett Process, 77 AD3d 1036, 1037 [2010]). As the award was made on or after July 1, 2007, Workers' Compensation Law § 27 (2) requires that the employers' workers' compensation carrier pay the full amount of the award into the aggregate trust fund (see id.). Accordingly, the Workers' Compensation Board directed that the carrier make that payment, and the carrier now appeals.

We affirm. We have previously considered and rejected the challenges made by the carrier to the relevant provisions of the Workers' Compensation Law (see id. at 1038-1039; Matter of Parkhurst v United Rentals Aerial Equip., Inc., 75 AD3d 702, 704-705 [2010], lvs granted 15 NY3d 712 [2010]; Matter of Collins v Dukes Plumbing & Sewer Serv., Inc., 75 AD3d 697, 698-702 [2010], lvs granted 15 NY3d 713, 891 [2010]).

Spain, J.P., Lahtinen and Egan Jr., JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20110324

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