State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 8, 2015 520632 

________________________________

In the Matter of the Claim of

DEBORAH PALAZZOLO,

Claimant,

v

DUTCHESS COUNTY,

Appellant, MEMORANDUM AND ORDER

and

SPECIAL FUND FOR REOPENED 

CASES,

Respondent.

WORKERS' COMPENSATION BOARD,

Respondent.

________________________________

Calendar Date: September 14, 2015

Before: Egan Jr., J.P., Rose, Devine and Clark, JJ.

__________

Ryan, Roach & Ryan, LLP, Kingston (Jill M. Johnson of

counsel), for appellant.

Steven M. Licht, Special Funds Conservation Committee,

Albany (Jill B. Singer of counsel), for Special Fund for Reopened

Cases, respondent.

__________

Clark, J.

Appeal from a decision of the Workers' Compensation Board,

filed April 18, 2014, which ruled that claimant's case was not

truly closed for the purpose of shifting liability to the Special

Fund for Reopened Cases pursuant to Workers' Compensation Law

§ 25-a.
-2- 520632 

On July 20, 2000, claimant suffered a work-related injury

to her left arm but, since her lost work time did not exceed the

waiting period, no application for lost wages was submitted and

no finding was made as to permanency or any degree thereof. 

Diagnostic medical tests were authorized and, after an appearance

on June 12, 2001, the employer was directed to produce payroll

records and a C-240 statement of wage earnings for purposes of

calculating average weekly wages, and the issue of permanency was

left unresolved. When claimant later made further requests for

medical authorization in 2013, the employer requested that

liability be transferred pursuant to Workers' Compensation Law

§ 25-a. The employer did not provide the C-240 until May 17,

2013, after claimant applied for further medical treatment and

the Special Fund for Reopened Cases was put on notice. At a

hearing, claimant testified that, other than a weight limit on

lifting, she had continued to perform her job duties for the

employer, albeit with some difficulty and pain that had recently

increased, and had been continually compensated at her normal

rate of pay. A Workers' Compensation Law Judge denied the

employer's request to transfer liability, finding that the case

was never truly closed, as there were directives for the carrier

to produce payroll records and for both sides to submit

permanency medical reports, and there was an outstanding issue of

average weekly wages. Upon review, the Workers' Compensation

Board affirmed. The employer appeals.

Pursuant to Workers' Compensation Law § 25-a, "liability

shifts from the carrier [or self-insured employer] to the Special

Fund when an application to reopen a closed case is made more

than seven years after the date of injury and three years

following the last payment of benefits" (Matter of Zogaria v

Quebecor World USA Inc., 125 AD3d 1090, 1091 [2015] [internal

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

Eastman Kodak Co., 123 AD3d 1388, 1389 [2014]). However, even

when the required time periods have elapsed, liability will not

shift unless the case "was truly closed . . . [, which] is a

factual determination for the Board to resolve based primarily

upon whether any further proceedings [were] contemplated [at the

time of the presumed closing] with regard to issues concerning

the payment of compensation" (Matter of Hosey v Central N.Y.

DDSO, 91 AD3d 993, 994 [2012] [internal citations omitted]; see

Matter of Zogaria v Quebecor World USA Inc., 125 AD3d at 1091;
-3- 520632 

Matter of Porter v New York State Elec. & Gas Corp., 113 AD3d

987, 988 [2014]). 

Here, although more than seven years had passed since

claimant's July 2000 injury, the record supports the Board's

factual determination that, at the time that the employer

requested that liability be shifted, it had not submitted the

requested C-240, and the issues of permanency and average weekly

wages had not been resolved. While no determination had yet been

made whether claimant was entitled to lost wages or other

compensation, the record reflects that further proceedings were

contemplated. Accordingly, the Board's decision that the case

was not truly closed was supported by substantial evidence and

will not be disturbed (see Matter of Hunter v Tops Mkt., Inc.,

125 AD3d 1092, 1093 [2015]; Matter of Pankiw v Eastman Kodak Co.,

123 AD3d at 1389-1390; cf. Matter of Zogaria v Quebecor World USA

Inc., 125 AD3d at 1091; Matter of Palermo v Primo Coat Corp., 88

AD3d 1042, 1043 [2011], lv dismissed 18 NY3d 810 [2012]; Matter

of Bates v Finger Lakes Truck Rental, 41 AD3d 957, 959-960

[2007]).

Egan Jr., J.P., Rose and Devine, JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court