State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 3, 2015 519727 

________________________________

In the Matter of the Claim of

BONNIE GOUTREMOUT,

Respondent,

v

ADVANCE AUTO PARTS et al.,

Appellants,

and MEMORANDUM AND ORDER

SPECIAL FUND FOR REOPENED 

CASES,

Respondent.

WORKERS' COMPENSATION BOARD,

Respondent.

________________________________

Calendar Date: October 19, 2015

Before: McCarthy, J.P., Rose, Devine and Clark, JJ.

__________

Wolff, Goodrich & Goldman, LLP, Syracuse (Robert E. Geyer

Jr. of counsel), for appellants.

Steven M. Licht, Special Funds Conservation Committee,

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

Cases, respondent.

Eric T. Schneiderman, Attorney General, New York City

(Steven Segall of counsel), for Workers Compensation Board,

respondent.

__________
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Devine, J.

Appeals (1) from a decision of the Workers' Compensation

Board, filed December 10, 2013, which ruled that liability for

the claim did not shift to the Special Fund for Reopened Cases

pursuant to Workers' Compensation Law § 25-a, and (2) from a

decision of said Board, filed November 10, 2014, which denied a

request by the employer and its workers' compensation carrier for

reconsideration and/or full Board review.

In December 2001, claimant sustained a work-related injury

to her right knee. In August 2005, claimant was awarded a 25%

schedule loss of use of her right leg, which was paid by the

workers' compensation carrier at that time, and the case was

closed. In November 2008, the claim was amended to include a

consequential left knee injury. Thereafter, in February 2009,

claimant filed a request for further action seeking authorization

for right knee replacement surgery, which was granted. In March

2011, claimant was awarded an overall 50% loss of use of her

right leg, which was then paid by the employer's workers'

compensation carrier. At a hearing in September 2012, the

employer and its carrier raised the issue of transfer of

liability to the Special Fund for Reopened Cases. Following a

hearing, the Workers' Compensation Law Judge shifted liability to

the Special Fund effective September 20, 2010. The Workers'

Compensation Board reversed, finding that Workers' Compensation

Law § 25-a relief was unavailable because the last payment of

compensation was made in March 2011, less than three years from

the request to shift liability to the Special Fund. The Board

denied the subsequent request for reconsideration and/or full

Board review. These appeals by the employer and the carrier

ensued.

Liability for a claim shifts to the Special Fund "when an

application for compensation is made by an employee . . . after a

lapse of seven years from the date of the injury . . . and also a

lapse of three years from the date of the last payment of

compensation" (Workers Compensation Law § 25-a [1]). Here, both

of those time limitations were satisfied when claimant made an

application to reopen the claim in February 2009. The Special

Fund's "liability [was] triggered, as a matter of law, upon the
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passage of time as provided by the statute" (Matter of Martin v

New York Tel., 46 AD3d 1136, 1137 [2007]; see Matter of De Mayo v

Rensselaer Polytech Inst., 74 NY2d 459, 462 [1989]; cf. Matter of

Scoppo v American Brake Shoe Co., 43 AD2d 603, 604 [1973]; Matter

of Gillette v Staub & Son, 8 AD2d 896 [1959]). Although relevant

to the period of retroactivity, the carrier's payment of

compensation in March 2011 and its September 2012 request that

liability be transferred to the Special Fund are not

determinative as to when that liability attached. To hold

otherwise would be contrary to the purpose of the statute, which

"is to shift the liability for paying stale claims to the

[Special] Fund" (Matter of Early v New York Tel. Co., 57 AD3d

1341, 1343 [2008] [internal quotation marks and citation

omitted]; see Matter of Ercole v New York State Police, 118 AD3d

1211, 1212-1213 [2014]). 

In view of the foregoing, the challenge to the denial of

the request for reconsideration and/or full Board review is

academic.

McCarthy, J.P., Rose and Clark, JJ., concur.

ORDERED that the decision filed December 10, 2013 is

reversed, without costs, and matter remitted to the Workers'

Compensation Board for further proceedings not inconsistent with

this Court's decision. 

ORDERED that the appeal from the decision filed November

10, 2014 is dismissed, as academic, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court