Third Department Decisions dealing with workers’ compensation issues 2-11-15

In the Matter of Hershewsky , a pro se claimant appealed a finding that they had committed a 114-a violation.

Claimant sustained a work-related injury to her back in 1992 and was awarded workers’ compensation benefits. In 2011, the employer and its workers’ compensation carrier raised the issue of whether claimant had violated Workers’ Compensation Law § 114-a. After viewing surveillance videos and hearing testimony, a Workers’ Compensation Law Judge found that claimant had violated Workers’ Compensation Law § 114-a and disqualified her from receiving future benefit payments. The Workers’ Compensation Board affirmed this decision and claimant now appeals.

The Board was affirmed. Pursuant to Workers’ Compensation Law § 114-a (1), a claimant who “knowingly makes a false statement or representation as to a material fact . . . shall be disqualified from receiving any compensation directly attributable to such false statement or representation.”

“A determination by the Board that a claimant violated Workers’ Compensation Law § 114-a will not disturbed if supported by substantial evidence”(Matter of Poli v Taconic Correctional Facility, 83 AD3d 1339, 1339-1340 [2011] [citation omitted]; accord Matter of Denman v Cobbler’s Rest., 106 AD3d 1289, 1290 [2013]).

Here, claimant testified that she is unable to walk without assistance, is unable to bend over or push or pull anything. Claimant admitted that the surveillance video taken on February 14, 2011 depicted her entering and leaving a Board hearing. In the video, claimant needed assistance from her son in getting in and out of the car and she walked using a cane, with her son supporting her. Video taken approximately 15 minutes after claimant left the hearing, however, shows claimant walking a dog in a parking lot without difficulty, bending over to pick up the dog and getting into her car without assistance. Although claimant testified that the individual depicted walking the dog was not her, despite the fact that the individual was wearing the same clothes that claimant was admittedly wearing 15 minutes earlier, the investigator who conducted the surveillance testified that he followed claimant from the hearing and that it was her who he filmed walking the dog. This presented a credibility issue for the Board to resolve (see Matter of Borgal v Rochester-Genesee Regional Transp. Auth., 108 AD3d 914, 915 [2013]; Matter of Church v Arrow Elec., Inc., 69 AD3d 983, 985 -3- 517625 [2010]). In our view, the Board’s decision that claimant made false representations regarding material facts is supported by substantial evidence in the record and, accordingly, it will not be disturbed. Claimant’s remaining arguments have been examined and found to be without merit.

In Matter of Campione , another pro se claimant appealed this time the denial of her claim , again the Board was affirmed.

Claimant applied for workers’ compensation benefits, alleging that she suffered neurological injuries caused by exposure to pesticides at her workplace. A Workers’ Compensation Law Judge denied the claim and the Workers’ Compensation Board affirmed, prompting this appeal. The Court affirmed the Board . The employer’s medical expert, a neurologist who conducted an independent medical examination of claimant, found no objective evidence of any toxicity, toxic reaction, neurological disability or cognitive impairment. Although claimant’s medical experts opined that she suffers from a causally related neurologic condition, those opinions were largely based upon her subjective complaints. According proper deference to the Board’s resolution of conflicting medical evidence and evaluation of witness credibility, we find the Board’s determination to be supported by substantial evidence and decline to disturb it (see Matter of Alm v Natural Health Family Chiropratic, 85 AD3d 1500, 1501 [2011]; Matter of Ogden v PCA Intl., 26 AD3d 625, 625-626 [2006]).

In Matter of Grazma, the carrier appealed a finding that the claimant did not violate section 114-a.

Claimant, a teacher, was injured when he tripped over electrical cords and fell at work. He has an established claim for injuries to his left shoulder and neck. In August 2010, the self-insured employer raised the issue of attachment to the labor market and sought the testimony of claimant and his medical providers on the issue. A Workers’ Compensation Law Judge (hereinafter WCLJ) denied the employer’s request for claimant’s testimony, but continued the matter for cross-examination of two of claimant’s medical providers on the outstanding issues of degree of disability and work capacity. Thereafter, the employer alleged a violation of Workers’ Compensation Law § 114-a and sought to admit evidence of video and surveillance reports of claimant’s activities between May and September 2010. The WCLJ ruled that the evidence was inadmissible. Following a determination by the Workers’ Compensation Board that the surveillance materials were admissible, the WCLJ did not review the materials again – despite over a year elapsing between the time that the evidence was submitted and the hearing on remittal – but nevertheless concluded that the surveillance materials were not inconsistent with statements that claimant had made to his physicians, and that claimant has a permanent impairment of 75% and continues to be involuntarily retired. The Board affirmed, finding that claimant did not violate Workers’ Compensation Law § 114-a, the surveillance video did not affect the issue regarding the degree of disability, claimant has a marked (75%) permanent partial disability, and the issues of labor market attachment and involuntary retirement were not properly before it because they had been raised for the first time on appeal.

This appeal ensued. We reverse. Initially, the employer argues that the record does not contain substantial evidence to support the Board’s finding with respect to Workers’ Compensation Law § 114-a. Specifically, the employer maintains that the video surveillance shows images of claimant engaged in physical activity that is inconsistent with representations he made to physicians. Under Workers’ Compensation Law § 114-a (1), a claimant may be disqualified from receiving workers’ compensation benefits “[i]f for the purpose of obtaining compensation . . . or for the purpose of influencing any determination regarding any such payment, [he or she] knowingly makes a false statement or representation as to a material fact.”While the Board’s “determination of whether a claimant has violated Workers’ Compensation Law § 114-a will be upheld if it is supported by substantial evidence in the record”(Matter of Borgal v Rochester-Genesee Regional Transp. Auth., 108 AD3d 914, 915 [2013]), this Court will reverse if, as herein, the determination is based upon “factual inaccuracies and mischaracterizations of”the record (Matter of Donato v Aquarian Designs, Inc., 96 AD3d 1302, 1303 [2012]; see Matter of Engoltz v Stewart’s Ice Cream, 91 AD3d 1066, 1067 [2012]; Matter of Passari v New York City Hous. Auth., 13 AD3d 853, 854-855 [2004]). The record reflects that during his July 2010 independent medical examination, claimant stated that he was able to mow his lawn with a self-propelled mower and could take two-mile walks several times a week, but that his wife raked and cleaned up their yard and his neighbor performed snow removal. He also stated that he did no indoor home maintenance activities. In contrast, surveillance video performed on the same day showed him performing yard work around his house for over two hours, including raking, using a large walk-behind mower, overhead tree trimming, cleaning up trimmings, and carrying a garbage bag to the curb – all with no sign of having a neck or shoulder disability. Video surveillance on other days also showed him using a leaf blower, lifting a wheelbarrow and lumber, painting with a roller and brush, digging with a shovel, and standing on a ladder while using a power drill, wrench and hammer during the installation of a hot tub.

Notably, the examining physician had determined in July 2010 that claimant had a marked partial disability that required limiting repetitive movement of the upper extremities and lifting more than 10 pounds to shoulder level. After viewing the video surveillance, the physician concluded that “claimant clearly is capable of doing far more home-based activities than he admitted to during my independent examination.”The physician therefore revised his findings, concluding that claimant has only a mild partial disability and no functional disability. Under these circumstances, the Board’s finding that “[t]he video surveillance does not show any images of the claimant engaging in physical activities inconsistent with any representation he had made to any of the parties’ doctors”is not supported by substantial evidence in the record (see Matter of Passari v New York City Hous. Auth., 13 AD3d at 855).

The Board’s argument that Matter of Passari v New York City Hous. Auth. (supra) is not controlling because the employer did not obtain claimant’s testimony, despite the fact that it was allegedly in no way prevented from doing so, is based upon a misinterpretation of Passari. Our decision in Passari did not rest solely upon the claimant’s evasive testimony in that case, or the fact that the claimant was videotaped performing activities related to his profession; nor did our decision in that case imply in any way that a doctor’s statement regarding a claimant’s description of his or her injuries should be disregarded as “second-hand”information for purposes of Workers’ Compensation Law § 114-a. Rather, in concluding that section 114-a had been violated, we noted that the claimant’s doctor confirmed that the claimant “fail[ed] to affirmatively disclose highly relevant information”(id.). Similarly here, the physician who performed the independent medical examination stated that the surveillance revealed claimant to be “capable of doing far more home-based activities than he admitted to during [the] independent examination.”In light of the foregoing, this matter must be remitted to the Board for a determination of whether claimant’s failure to disclose the extent of his abilities was material, and done both knowingly and for the purpose of obtaining benefits (see Matter of Donato v Aquarian Designs, Inc., 96 AD3d at 1304; Matter of Johnson v New York State Dept. of Transp., 305 AD2d 927, 928 [2003]) – issues that the Board did not reach in light of its conclusion that claimant made no false representations.

Similarly, inasmuch as the Board concluded, without explanation, that the surveillance materials did “not affect[]”the issue regarding claimant’s degree of disability – and it is therefore unclear that the Board ever considered the surveillance materials in that regard – the Board should also reconsider on remittal the degree of claimant’s disability in light of all the evidence.

Finally, the Board’s finding that the issue of claimant’s attachment to the labor market was never raised before the WCLJ is unsupported by the record and, thus, that issue must also be considered on remittal. The decision was rescinded and the case sent back to the Board for further development of the record.

In Matter of Lombardo, the carrier appealed a finding that the claimant’s removal from the labor market was involuntary, the Court reversed the Board.

In June 2004, after working for the employer for 32 years, claimant filed his retirement papers, with an effective date of July 30, 2004. Claimant continued to work full duty until July

8, 2004, when he sustained work-related injuries to his head, shoulders and back, which rendered him disabled for the duration of his employment. Workers’ compensation awards were paid from the date of injury until the date of retirement and were held in abeyance thereafter. The claim was reopened in September 2011, at which time claimant alleged that he was entitled to awards subsequent to the effective retirement date. The employer and its third-party administrator controverted the claim, contending that claimant’s retirement constituted a voluntary withdrawal from the labor market. Following a hearing, a Workers’ Compensation Law Judge determined, among other things, that as a result of claimant’s causally-related disability resulting from his work-related injury, claimant did not voluntarily withdraw from the labor market, and established the claim awarding benefits subsequent to the effective retirement date. The Workers’ Compensation Board affirmed that determination, giving rise to this appeal.

We reverse. “Generally, a claimant who voluntarily withdraws from the labor market by retiring is not entitled to workers’ compensation benefits unless the claimant’s disability caused or contributed to the retirement”(Matter of Lombardi v Brooklyn Union Gas Co., 306 AD2d 704, 705 [2003] [citation omitted]; see Matter of Flannery v Nassau County Police Dept., 26 AD3d 678, 680 [2006]; Matter of Bury v Great Neck UFSD, 14 AD3d 786, 787 [2005]; Matter of Camarda v New York Tel., 262 AD2d 816, 816 [1999]). Whether a voluntary withdrawal has occurred “is a factual determination to be made by the Board, and its decision will be upheld when supported by substantial evidence”(Matter of Ballou v Southworth-Milton, Inc., 107 AD3d 1084, 1085 [2013]; see Matter of Flannery v Nassau County Police Dept., 26 AD3d at 678; Matter of Bury v Great Neck UFSD, 14 AD3d at 787; Matter of Gennes v Longwood Cent. School Dist., 2 AD3d 1015, 1016 [2003]). There must, however, “be some evidence that the claimant’s disability caused or contributed to retirement”(Matter of Curtis v Dale Pipery Corp., 295 AD2d 836, 837 [2002] [internal quotation marks and citation omitted]; see Matter of Camarda v New York Tel., 262 AD2d at 816; Employer: Corning Inc., 2014 WL 2726554, *5, 2014 NY Wrk Comp LEXIS 3836, *14 [WCB No. G015 9086, June 16, 2014]).

At the hearing, claimant testified that he decided to retire prior to the happening of the accident due to personal issues he had with his supervisors and did so with full benefits based upon his 32 years of service. Noticeably absent from claimant’s testimony is any assertion that his injuries were a contributing factor in his decision to retire (see Matter of Gennes v Longwood Cent. School Dist., 2 AD3d at 1016). In fact, claimant admitted that he voluntarily retired for reasons unrelated to his claim for compensation, but asserted that, inasmuch as his medical conditions worsened after retirement, his withdrawal from the labor market was involuntary. Notwithstanding the permanent and total nature of claimant’s disability, there is no evidence in the record that claimant, who was 66 years old at the time he retired, had intended to remain attached to the labor market post-retirement. Thus, claimant’s decision to remove himself from the labor market was unrelated to his disability, and the record is devoid of any proof that claimant suffered post-retirement loss of wages as a result of his disability (see Matter of Bacci v Staten Is. Univ. Hosp., 32 AD3d 582, 584 [2006]; see also Employer: Paramount Ins. Co., 1999 NY Wrk Comp LEXIS 275, *6 [WCB No. 0953 4242, Dec. 30, 1999]). Accordingly, the Board’s finding that claimant involuntarily withdrew from the labor market is not supported by substantial evidence. Mtter remitted to the Workers’ Compensation Board for further proceedings not inconsistent with this Court’s decision.

Matter of Cappelletti , the carrier appealed the establishment of the claim.

Claimant, a school teacher, filed a claim for workers’ compensation benefits, alleging that she developed an autoimmune disorder due to exposure to mold in her workplace. Following a hearing, a Workers’ Compensation Law Judge found that claimant had established a work-related injury due to mold exposure. Upon review, the Workers’ Compensation Board affirmed and the employer and its workers’ compensation carrier now appeal. The Court affirmed stating, “To establish an accidental work-related condition that developed over time, rather than from a sudden event, claimant was required to demonstrate by competent medical evidence that his [or her] condition resulted from unusual environmental conditions or events assignable to something extraordinary”(Matter of Mazayoff v A.C.V.L. Cos., Inc., 53 AD3d 890, 891 [2008] [internal quotation marks and citations omitted]; see Matter of Johannesen v New York City Dept. of Hous. Preserv. & Dev., 84 NY2d 129, 138 [1994]; Matter of Laib v State Ins. Fund, 101 AD3d 1279, 1279-1280 [2012]). Here, claimant testified that, over time, she was exposed to mold at work that resulted from water damage due to a leaking roof. According to claimant, although her breathing problems began in 1999, her condition worsened considerably in April 2010, when a major construction project at the school was taking place that included working on the roof and some remodeling near her classroom. In further support of her claim, claimant presented three medical opinions, all of which concluded that she suffers from a causally-related autoimmune disorder resulting from mold exposure at the school.

Although the record contains medical opinions and other evidence that could support a contrary result, “the Board is entitled to draw any reasonable inference from the evidence contained in the record, and this Court will not interfere with the Board’s resolution of conflicting facts even if the evidence rejected by the Board would have supported a contrary conclusion”(Matter of Camby v System Frgt., Inc., 105 AD3d 1237, 1238 [2013] [internal quotation marks and citations omitted]; see Matter of Cicciarelli v Westchester Health Care Corp., 86 AD3d 733, 734 [2011]). Accordingly, despite the contrary evidence, we are satisfied that the Board’s decision is supported by substantial evidence and it will not be disturbed.

In Matter of Scott, Special Funds appealed a finding that 25-a applied.

Claimant injured his back while working as a custodian’s assistant for the employer in 2004, and his claim for that injury – which is at issue on this appeal – was ultimately established in 2009, although it was noted that he lost no wages. In 2008, claimant suffered an unrelated injury to his left knee and stopped working at that time. In a separate claim, a Workers’ Compensation Law Judge found that claimant had a 55% schedule loss of his left leg and awarded benefits. In 2012, claimant sought treatment in connection with his back injury, and ultimately claimed three months of lost time related to that injury. The workers’ compensation carrier sought transfer of liability to the Special Fund for Reopened Cases pursuant to Workers’ Compensation Law § 25-a. Following a hearing, the Workers’ Compensation Law Judge concluded that liability transferred and awarded benefits for a temporary, marked partial disability. The Workers’ Compensation Board affirmed, prompting this appeal by the Special Fund.

The Court affirmed. The Special Fund argues that claimant admittedly stopped working for reasons unrelated to his back injury and, thus, he was required to demonstrate attachment to the labor market – that is, to show that his inability to work was due to his back injury. In that regard, the Board properly acknowledged that, absent a finding of involuntary retirement, claimants with a partial disability have “an obligation to demonstrate attachment to the labor market with evidence of a search for employment within medical restrictions”(Matter of Winters v Advance Auto Parts, 119 AD3d 1041, 1042 [2014] [internal quotation marks and citations omitted]; see Matter of Zamora v New York Neurologic Assoc., 19 NY3d 186, 191-192 [2012]). As the Special Fund concedes, however, the Board has previously held that awards should be continued until the carrier has raised the issue of labor market attachment, thereby allowing for development of the record on the issue (see Employer: New York State Police, 2012 WL 5816563, 2012 NY Wrk Comp LEXIS 4171 [WCB No. 6991 8589, Nov. 14, 2012]; Employer: MZL Home Care Agency, 2012 WL 4293361, 2012 NY Wrk Comp LEXIS 8095 [WCB No. 001 7141, Sept. 17, 2012]; Employer: Alliance Carpet and Tiles, 2009 WL 1009404, 2009 NY Wrk Comp LEXIS 7100 [WCB No. 0976 1710, Apr. 1, 2009]). The Special Fund does not challenge the principle set forth in the Board’s prior decisions, but argues that they are distinguishable. We disagree. The award sought herein was for lost time prior to the date of the hearing, when the Special Fund raised the issue of attachment to the labor market for the first time. The award of benefits for that period was therefore entirely consistent with the Board’s prior precedent. The Special Fund’s remaining arguments, to the extent not addressed herein, are rendered academic by our decision.

In Matter of Cole, the carrier appealed a finding that the claimant demonstrated an attachment to the labor market. Claimant filed a workers’ compensation claim for occupational disease caused by exposure to asbestos. The claim was established, and claimant was found to have a permanent partial disability as of November 1995; the claim was subsequently amended to include diagnoses of chronic bronchitis and chronic obstructive pulmonary disease. Claimant lost no time from work until he was permitted to voluntarily retire, in lieu of termination for cause, at the age of 69 in November 2009, after working for the employer for nearly 50 years. A Workers’ Compensation Law Judge concluded that claimant’s separation from employment was unrelated to his occupational disability, and that claimant was not entitled to benefits subsequent to his retirement because he had voluntarily removed himself from the labor market. After a panel of the Workers’ Compensation Board reversed in a split decision, the self-insured employer and its third-party administrator (hereinafter collectively referred to as the employer) sought full Board review. The full Board affirmed the panel’s decision, prompting this appeal.

The Court affirmed. “Where a claimant has a permanent partial disability but there has been no finding of involuntary retirement, the claimant has an obligation to demonstrate attachment to the labor market with evidence of a search for employment within medical restrictions,”and the Board’s determination in that regard will be upheld if supported by substantial evidence (Matter of Winters v Advance Auto Parts, 119 AD3d 1041, 1042 [2014]] [internal quotation marks and citations omitted]; see Matter of Zamora v New York Neurologic Assoc., 19 NY3d 186, 191-193 [2012]; Matter of Launer v Euro Brokers, 115 AD3d 1130, 1130-1131 [2014], lv denied 23 NY3d 906 [2014]; Matter of Smith v Consolidated Edison Co. of N.Y., Inc., 68 AD3d 1299, 1300 [2009]). Here, the Board concluded that claimant credibly testified and provided corroborating documentary evidence that he actively participated in a job location service and engaged in an independent job search within his medical restrictions, thereby demonstrating attachment to the labor market (see Matter of Winters v Advance Auto Parts, 119 AD3d at 1042-1043). The Board noted that, although jobs were available, when claimant advised prospective employers of his disability, he was told that no positions were available that would accommodate his medical restrictions (cf. Matter of Smith v Consolidated Edison Co. of N.Y., Inc., 68 AD3d at 1301; Matter of Harchar v Sarkisian Bros., Inc., 53 AD3d 986, 988 [2008]). Contrary to the employer’s argument, the fact that claimant limited that search to jobs within the field that he had worked for nearly 50 years provides no basis to disturb the Board’s decision (see Matter of Renteria v Santino’s Café, 62 AD3d 1233, 1234 [2009]). The Court found substantial evidence supported the Board’s decision.

In Matter of Zogaria, the Special Funds again appealed a finding that 25-a applied.

Claimant sustained a work-related injury to her left knee on June 1, 2005, and her undisputed claim for workers’ compensation benefits was established. She was awarded benefits from August 2005 to November 2005 and, thereafter, did not lose any more time from work. In December 2006, a Workers’ Compensation Law Judge found a 22.5% schedule loss of use of claimant’s left leg, and awarded additional benefits, which the workers’ compensation carrier paid in full prior to January 4, 2007. Claimant continued receiving symptomatic medical care and, in January 2012, her physician requested authorization for a left total knee arthroplasty. The carrier authorized surgery on February 27, 2012, and claimant underwent the procedure on September 21, 2012. Shortly thereafter, the carrier requested that liability be transferred to the Special Fund for Reopened Cases pursuant to Workers’ Compensation Law § 25-a. The Workers’ Compensation Law Judge denied the request, but the Workers Compensation Board reversed, finding that liability shifted to the Special Fund when the case was reopened in September 2012, at the time that claimant underwent the authorized surgery. This appeal by the Special Fund ensued.

“Workers’ Compensation Law § 25-a (1) provides that liability shifts from the carrier 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 Porter v New York State Elec. & Gas Corp., 113 AD3d 987, 988 [2014] [internal quotation marks and citations omitted]). Even when the requisite time periods have passed, liability will not shift pursuant to section 25-a unless the case was truly closed (see id.; Matter of Palermo v Primo Coat Corp., 88 AD3d 1042, 1042 [2011], lv dismissed 18 NY3d 810 [2012]; Matter of Bates v Finger Lakes Truck Rental, 41 AD3d 957, 959 [2007]). “Whether and when a case is truly closed is a factual question for the Board to determine, based mainly on whether further proceedings were contemplated at the time of the presumed closing, and that determination will not be reversed if supported by substantial evidence”(Matter of Bates v Finger Lakes Truck Rental, 41 AD3d at 959 [citations omitted]). Inasmuch as claimant sought payment for the surgery more than seven years after the date of injury in June 2005 and three years after the last date of the last payment of compensation in January 2007, the issue presented in this case is whether the case was truly closed prior to the time that surgery was performed (see Matter of Rathbun v D’Ella Pontiac Buick GMC, Inc., 61 AD3d 1293, 1294 [2009]). Here, the Board concluded that the case was closed following the schedule use award in 2006. (1) In response to the Special Fund’s argument that the request by claimant’s physician for authorization of surgery constituted an “informal reopening”of the case (see generally Matter of Riley v Aircraft Prods. Mfg. Corp., 40 NY2d 366, 370-371 [1976]), the Board determined that the case was informally closed again when the carrier authorized surgery in February 2012. As in Rathbun, claimant remained medically cleared for full-duty work at the time of the February 2012 authorization of surgery, and did not seek compensation for lost time. Inasmuch as there is no evidence that other issues remained outstanding after surgery was authorized, and “all that remained to be resolved was whether claimant herself would decide to undergo this surgical procedure”(Matter of Rathbun v D’Ella Pontiac Buick GMC, Inc., 61 AD3d at 1295), substantial evidence supports the Board’s determination that the case was truly closed in February 2012 (see id. at 1294- 1295; see also Matter of Porter v New York State Elec. & Gas Corp., 113 AD3d at 988-989; Matter of Palermo v Primo Coat Corp., 88 AD3d at 1042-1043). The Special Fund’s remaining challenges are either contrary to this Court’s precedent, otherwise lacking in merit, or unpreserved for our review.

(1) The fact that claimant received symptomatic treatment after 2006 would not preclude a true closure; “[a] case may be truly closed where symptomatic medical treatment is authorized, even if the claimant’s condition may change or worsen in the future, which would result in a reopening of the case”(Matter of Bates v Finger Lakes Truck Rental, 41 AD3d at 959).

In Matter of Hunter, in this case the carrier appealed the fact that the Board found 25-a did not apply.

Claimant filed a workers’ compensation claim, which was established for a causally-related occupational disease involving right carpal tunnel syndrome, with a date of disablement in May 2005. Claimant underwent right carpal tunnel release in 2007. A 2010 nerve conduction study revealed possible mild left carpal tunnel syndrome as well. As reflected in a 2011 doctor’s progress report submitted to the Workers’ Compensation Board, claimant’s doctor subsequently diagnosed her with continued carpal tunnel syndrome in her right hand, and carpal tunnel syndrome in her left hand. Shortly thereafter, the Board found a 10% schedule loss of use of claimant’s right hand, but did not address the diagnosis of carpal tunnel syndrome in her left hand. In September 2012, the employer requested that liability be transferred to the Special Fund for Reopened cases pursuant to Workers’ Compensation Law § 25-a. The Board found that the case was never truly closed and, therefore, denied transfer of liability to the Special Fund. This appeal ensued. The Court affirmed the Board.

Liability shifts “to the Special when an application to reopen a case is made after a lapse of seven years from the date of the injury and three years from the date of the last payment of compensation, upon a showing that the case has been truly closed”(Matter of Anticola v Tops Mkts., 117 AD3d 1373, 1374 [2014] [internal quotation marks and citations omitted]). “Whether a case has been truly closed’ for the purposes of Workers’ Compensation Law § 25-a is a factual issue to be resolved by the Board by evaluating if any further proceedings related to the payment of compensation were contemplated at the time that the case was closed”(Matter of Porter v New York State Elec. & Gas Corp., 113 AD3d 987, 988 [2014] [citations omitted]; see Matter of Hunt v Price Chopper/Golub Corp., 85 AD3d 1522, 1523 [2011]). The employer and its third-party administrator argue that liability should have transferred herein; they maintain that the case was truly closed at the time that a 10% schedule loss of use was established for the right hand because the issue of left carpal tunnel syndrome had not yet been raised and, thus, no further action was contemplated. As the Board found, however, the 2011 progress report of claimant’s doctor indicated that claimant had left carpal tunnel syndrome, as well as right, and issues regarding the left hand remained unresolved at the time that the employer sought transfer of liability. Accordingly, the Board’s determination that the case was never truly closed is supported by substantial evidence and the transfer of liability was properly denied (see Matter of Hosey v Central N.Y. DDSO, 91 AD3d 993, 994-995 [2012]; Matter of Hunt v Price Chopper/Golub Corp., 85 AD3d at 1523; Matter of Aposporos v NYNEX, 46 AD3d 1016, 1016- 1017 [2007]; cf. Matter of Mucci v New York State Dept. of Corr., 98 AD3d 1223, 1224 [2012]; Matter of Palermo v Primo Coat Corp., 88 AD3d 1042, 1043 [2011], lv dismissed 18 NY3d 810 [2012]).

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