In the Matter of the Claim of CHRISTOPHER WILLIAMS, Respondent,
GENERAL ELECTRIC et al., Appellants, and SPECIAL FUND FOR REOPENED CASES, Respondent. WORKERS' COMPENSATION BOARD, Respondent.
Calendar Date: December 13, 2016
Stockton, Barker & Mead, LLP, Troy (Matthew R. Mead of
counsel), for appellants.
M. Licht, Special Funds Conservation Committee, Albany (Jill
B. Singer of counsel), for Special Fund for Reopened Cases,
Before: Peters, P.J., Garry, Rose, Devine and Mulvey, JJ.
MEMORANDUM AND ORDER
from a decision of the Workers' Compensation Board, filed
June 5, 2015, which ruled, among other things, that liability
did not shift to the Special Fund for Reopened Cases pursuant
to Workers' Compensation Law § 25-a.
2005, claimant sustained a work-related injury to his lower
back. His claim for workers' compensation benefits was
established in July 2005; however, because it was determined
that his disability was less than seven days, claimant did
not have any compensable lost time from work and received no
lost wage benefits. In 2014, the employer and its
workers' compensation carrier (hereinafter collectively
referred to as the employer) requested a transfer of
liability to the Special Fund for Reopened Cases pursuant to
Workers' Compensation Law § 25-a. At an ensuing July
2014 hearing to address the employer's request, a
Workers' Compensation Law Judge classified claimant as
having a permanent partial disability with a 25% loss of
wage-earning capacity and found that claimant had no
compensable lost time from the date of injury to July 25,
2014. The Workers' Compensation Law Judge also found that
the case had been truly closed and transferred liability for
the claim to the Special Fund. On administrative review, the
Workers' Compensation Board reversed, finding that,
although there had been true closure at the time that the
claim was established and no awards were made, an August 2009
medical report from claimant's chiropractor raised an
issue of permanency, which constituted a change in
claimant's medical condition and reopened the claim,
thereby warranting removal of the Special Fund from notice
and reinstatement of the employer's liability for the
claim. The employer now appeals.
Compensation Law § 25-a provides that "liability
for a claim shifts to the Special Fund where a workers'
compensation case that was fully closed is reopened more than
seven years after the underlying injury occurred and more
than three years after the last payment of compensation"
(Matter of Hosey v Central N.Y. DDSO, 91 A.D.3d 993,
994  [internal quotation marks, brackets and citations
omitted]; see Matter of Aposporos v NYNEX, 46 A.D.3d
1016, 1016 ; Matter of Bates v Finger Lakes Truck
Rental, 41 A.D.3d 957, 959 ). "A medical
report may be deemed an application to reopen if the report
gives the Board sufficient notice of a change in a
claimant's condition, as opposed to simply indicating
continued disability and treatment" (Matter of
Gregorec v Brenners Furniture Co., Inc., 68 A.D.3d 1301,
1302  [internal quotation marks and citations omitted];
see Matter of Donnelly v Alden Cent. Schools, 83
A.D.3d 1368, 1368 ; Matter of Linz v Maine Endwell
School Dist., 79 A.D.3d 1541, 1542 ). Such medical
report "should not be given a strained interpretation,
but should only be interpreted as a basis to reopen if that
was clearly the doctor's intention, " and the
"mere mention of permanency in a medical report, absent
an opinion regarding the degree of permanency, is
insufficient to act as a request to reopen a case"
(Matter of Gregorec v Brenners Furniture Co., Inc.,
68 A.D.3d at 1302 [internal quotation marks and citation
omitted]; see Matter of Jones v HSBC, 304 A.D.2d
864, 866 ). "Such a decision of the Board will not
be disturbed when supported by substantial evidence"
(Matter of Anticola v Tops Mkts., 117 A.D.3d 1373,
1374  [citations omitted]; see Matter of Porter v
New York State Elec. & Gas Corp., 113 A.D.3d 987,
988 ; Matter of Hunt v Price Chopper/Golub
Corp., 85 A.D.3d 1522, 1523 ).
inasmuch as claimant was not entitled to any lost wage
benefits when his claim was established for a work-related
injury, we agree with the Board that no further proceedings
concerning issues related to the payment of compensation were
contemplated at that time, and, therefore, the case was truly
closed in August 2005 (see Matter of Reddien v Joseph
Davis Inc., 136 A.D.3d 1144, 1145 ; Matter of
Hosey v Central N.Y. DDSO, 91 A.D.3d at 994; see
also Matter of Giansante v Seneca Cayuga ARC, 137 A.D.3d
1450, 1451 ). Nevertheless, the record reflects that
claimant continued to receive authorized treatment for
lower-back pain with his attending chiropractor, and,
following a reexamination of claimant on August 11, 2009,
claimant's chiropractor reported for the first time that
claimant exhibited a 25% permanent partial disability.
Subsequent examinations revealed no material change in
claimant's condition, and the chiropractor continued to
report that claimant had a 25% permanent partial disability.
Inasmuch as the August 2009 medical report raised the issue
of permanency and the degree of claimant's disability, we
find that substantial evidence supports the Board's
determination that the August 2009 medical report constituted
an application to reopen and that, as such, this case was
reopened within seven years of claimant's May 2005 injury
(see Matter of Reddien v Joseph Davis Inc., 136
A.D.3d at 1145; Matter of Donnelly v Alden Cent.
Schools, 83 A.D.3d at 1368-1369; Matter of Linz v
Maine Endwell School Dist., 79 A.D.3d at 1542-1543;
Matter of Gregorec v Brenners Furniture Co., Inc.,
68 A.D.3d at 1302-1303).
Rose, Devine and Mulvey, JJ., concur.
that the decision is ...