Calendar Date: October 11, 2017
Goodrich & Goldman, LLP, Syracuse (Robert Geyer of
counsel), for appellants.
M. Licht, Special Funds Conservation Committee, New York City
(Jill B. Singer of counsel), for Special Fund for Reopened
Before: McCarthy, J.P., Lynch, Rose, Clark and Pritzker, JJ.
MEMORANDUM AND ORDER
from a decision of the Workers' Compensation Board, filed
October 19, 2015, which ruled that liability did not shift to
the Special Fund for Reopened Cases pursuant to Workers'
Compensation Law § 25-a.
November 8, 2006, claimant sustained a work-related injury as
a result of exposure to chemical fumes at work. A claim for
irritant rhinoconjunctivitis and hives was established and
claimant was awarded workers' compensation benefits.
Thereafter, in a January 26, 2012 decision, a Workers'
Compensation Law Judge (hereinafter WCLJ) found, among other
things, that there was no compensable lost time from January
17, 2007 to January 24, 2012. That decision was affirmed by
the Workers' Compensation Board.
November 11, 2013, the employer and its third-party
administrator (hereinafter collectively referred to as the
employer) filed an RFA-2 form, requesting reopening for the
purpose of transferring liability to the Special Fund for
Reopened Cases pursuant to Workers' Compensation Law
§ 25-a. In support thereof, the employer attached a May
7, 2013 medical evaluation that noted that claimant was
working full time and responding well to medication and that
a follow-up visit had been scheduled for six months later
. Following a hearing, the WCLJ ruled,
among other things, that the employer was discharged from
liability and transferred liability for the claim to the
Special Fund. The Board modified the WCLJ's decision to
the extent of finding that the employer's application for
transfer of liability was incomplete, that the case was
improperly reopened as there was no liability to transfer at
the time of the reopening request, and that, therefore,
Workers' Compensation Law § 25-a did not apply. The
affirm. Initially, we note that there is no challenge to the
Board's finding that claimant's case was fully closed
by the January 26, 2012 WCLJ decision. To that end,
"Workers' Compensation Law § 25-a provides that
liability for a claim is transferred to the Special Fund when
an application to reopen a fully closed case is made more
than seven years from the date of injury and more than three
years after the last payment of compensation"
(Matter of Greey v Yaphank Fire Dept., 147 A.D.3d
1171, 1172  [internal quotation marks, brackets and
citations omitted]; see Workers' Compensation
Law § 25-a ; Matter of Williams v General
Elec., 146 A.D.3d 1211, 1212 ). "[C]laims may
be reopened for the purpose of shifting liability pursuant to
Workers' Compensation Law § 25-a upon, among other
things, 'the [employer] filing a request on form RFA-2 to
shift liability to [the] Special Fund in cases where there
is proof that further medical or indemnity benefits are
payable'" (Matter of Norcross v Camden Cent.
School, 78 A.D.3d 1339, 1340 , quoting
Employer: Del Labs, 2009 WL 193434, *6, 2009 NY Wrk
Comp LEXIS 4054, *16 [WCB No. 2940 8739, Jan. 14, 2009];
see Matter of Greey v Yaphank Fire Dept., 147 A.D.3d
the seven-year statutory period lapsed on November 8, 2013
and the three-year statutory period lapsed on June 5, 2011,
rendering the employer's application to shift liability
to the Special Fund timely. Nevertheless, the liability to
transfer relied upon by the employer at the time of and in
support of its application - specifically the May 7, 2013
medical evaluation - occurred within seven years of the date
of the accident. The passage of the requisite time period,
without current liability or proof that further medical or
indemnity payments were payable at the time the employer
submitted the RFA-2 application, did not form a proper basis
to reopen the claim for purposes of shifting liability to the
Special Fund (see Matter of Greey v Yaphank Fire
Dept., 147 A.D.3d at 1172-1173; Matter of Norcross v
Camden Cent. School, 78 A.D.3d at 1340; Employer:
Appolo Heating, 2015 WL 9267736, *3, 2015 NY Wrk Comp
LEXIS 11052, *6 [WCB No. 5070 1750, Dec. 9, 2015]). Although
the employer seeks to include medical liability subsequent to
its application, "the liability for the medical or
indemnity [must] exist at the time the [employer] files for
reopening" (Employer: St. Francis Hosp, 2015 WL
1121041, *2, 2015 NY Wrk Comp LEXIS 1475, *5 [WCB No. 5020
6892, Mar. 5, 2015]). Furthermore, contrary to the
employer's contention, the two-year retroactive period of
liability for the Special Fund provided in Workers'
Compensation Law § 25-a is separate and distinct from
the question of whether liability can be shifted to the
Special Fund in the first instance (see Matter of Canfora
v Goldman Sachs Group, Inc., 110 A.D.3d 1123, 1124-1125
. In view of the foregoing, the Board did not abuse its
discretion in denying the employer's application to
reopen and transfer liability to the Special Fund pursuant to
Workers' Compensation Law § 25-a (see Matter of
Greey v Yaphank Fire Dept., 147 A.D.3d at 1172-1173;
Employer: Homemaker Upstate Group, 2015 WL 745890,
*2, 2015 NY Wrk Comp LEXIS 809, *3-6 [WCB No. 8070 0088, Feb.
5, 2015]). The employer's remaining contentions have been
reviewed and found to be without merit.
McCarthy, J.P., Lynch, Rose and Pritzker, JJ., concur.
that the decision is affirmed, without costs.