Criteria for Recovery from Special Fund for Reopened Cases

In remitting the matter for further fact-finding, the Third Department explained the criteria for recovery from the Special Fund for Reopened Cases:

Workers’  Compensation  Law  §  25-a  provides  for the transfer of liability to the Special Fund  “when  an application to reopen a closed case is made  more  than seven years from the date of injury and  more  than three years after the last payment  of compensation…. Advance payments that are made voluntarily during the relevant time frame, in recognition of an employer’s liability, are considered compensation and  will prevent the shifting of liability to  the  Special Fund  ….   Notably, “evidence that a claimant received full wages  despite performing limited or light duties may result in a finding that advance payments [of compensation] have been  made”  …). Whether an advance payment of compensation was  made  to  the claimant is a factual issue for the  Board  to resolve and,  “its determination  . . . , if supported  by substantial evidence  in the  record  as  a  whole,  will not  be disturbed” … .  Matter of Schroeder v US Foodservice…, 515937, 3rd Dept, 6-6-13