State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: March 17, 2016 521442 

________________________________

In the Matter of the Claim of

PATRICE GIANSANTE,

Respondent,

v

SENECA CAYUGA ARC et al.,

Respondents,

and MEMORANDUM AND ORDER

SPECIAL FUND FOR REOPENED 

CASES,

Appellant.

WORKERS' COMPENSATION BOARD,

Respondent.

________________________________

Calendar Date: February 10, 2016

Before: Peters, P.J., Garry, Rose, Devine and Clark, JJ.

__________

Steven M. Licht, Special Funds Conservation Committee,

Albany (Jill B. Singer of counsel), for appellant.

Hamberger & Weiss, Rochester (Ronald E. Weiss of counsel),

for Seneca Cayuga ARC and others, respondents.

__________

Clark, J.

Appeal from a decision of the Workers' Compensation Board,

filed November 17, 2014, which ruled that liability shifted to

the Special Fund for Reopened Cases pursuant to Workers'

Compensation Law § 25-a.
-2- 521442 

Claimant sustained a work-related injury to her right ankle

in April 2006 and was awarded workers' compensation benefits. In

2007, claimant was found to have a 15% schedule loss of use of

the right foot. Claimant's orthopedic surgeon requested

authorization for surgery on the ankle in 2011 and the surgery

was performed in February 2012. In March 2013, a Workers'

Compensation Law Judge (hereinafter WCLJ) found no compensable

lost time from the date of surgery to March 27, 2013. 

In May 2013, claimant's surgeon reported that claimant had

reached maximum medical improvement and concluded that she had a

permanent partial disability. By stipulation of the parties, a

WCLJ classified claimant as having a 71% permanent partial

disability and rescinded the prior schedule loss of use award. 

The employer's workers' compensation carrier thereafter requested

that payment of benefits be transferred to the Special Fund for

Reopened Cases pursuant to Workers' Compensation Law § 25-a. 

Following a hearing, a WCLJ determined that Workers' Compensation

Law § 25-a applied and directed that liability be shifted to the

Special Fund effective February 9, 2012. Upon review, the

Workers' Compensation Board modified, affirming the transfer of

liability to the Special Fund, but finding the transfer effective

September 4, 2011. The Special Fund now appeals.

We affirm. "Workers' 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 AD3d 993, 994 [2012] [internal

quotation marks and citations omitted]; see Matter of Hunter v

Tops Mkt., Inc., 125 AD3d 1092, 1093 [2015]). Even in situations

such as this, where the statutory time periods have been

satisfied, liability will shift only if the case has been truly

closed (see Matter of Mucci v New York State Dept. of Corr., 98

AD3d 1223, 1223 [2012]; Matter of Palermo v Primo Coat Corp., 88

AD3d 1042, 1042 [2011], lv dismissed 18 NY3d 810 [2012]). 

"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
-3- 521442 

AD3d at 994 [citation omitted]; see Matter of Porter v New York

State Elec. & Gas Corp., 113 AD3d 987, 988 [2014]). 

Here, the Board determined that the case was truly closed

as of the March 2013 decision by the WCLJ. The Special Fund

argues that further proceedings were contemplated at the time of

that decision regarding the issue of compensable lost time for

the time period following claimant's surgery, precluding a

finding that the case was truly closed. We disagree. The record

reflects that compensation for that time period had previously

been held in abeyance. Following a hearing on the issue in March

2013, however, the WCLJ found no compensable lost time for that

period.1 While we note that the WCLJ stated that his finding was

made "without prejudice," he made no reference to the submission

of further evidence or to any further proceedings being

contemplated on this claim and no other action by the Board was

contemplated or required at that time (compare Matter of Runge v

National Baseball League, 93 AD3d 1015, 1016-1017 [2012]). 

Accordingly, we find that the Board's decision that the March

2013 determination constituted a true closing of the case is

supported by substantial evidence and the transfer of liability

to the Special Fund was appropriate (see Matter of Porter v New

York State Elec. & Gas Corp., 113 AD3d at 988-989; Matter of

Nanni v Source Corp., 98 AD3d 1225, 1227 [2012]; Matter of

Rathburn v D'Ella Pontiac Buick GMC, Inc., 61 AD3d 1293, 1294-

1295 [2009]). 

Peters, P.J., Garry, Rose and Devine, JJ., concur.

1 Claimant was also receiving workers' compensation

benefits related to a 2010 claim.
-4- 521442 

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court