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Responsibility for Payments for a 1999 Claim (Which Was Reopened After 13 Years) Shifted from the Workers’ Compensation Carrier to the Special Fund—Rationale for the Special Fund Explained—Payments Made by Carrier Re: a 2005 Claim Were Not Partially Attributable to the 1999 Claim—Therefore the Carrier Was No Longer Responsible for Payments Re: the 1999 Claim

The Third Department determined payments made by the employer re: a 2005 claim were not partially attributable to a 1999 claim. Therefore, any “new” payments re: the 1999 claim were the responsibility of the Special Fund, not the Workers’ Compensation carrier:

Workers’ Compensation Law § 25-a (1) provides, in relevant part, that “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, . . . if an award is made it shall be against the special fund” … . “The purpose of [the statute] is to save employers and insurance carriers from liability . . . for stale claims of injured employees” … . Here, the 1999 claim was reopened in 2012, approximately 13 years after the December 3, 1999 injury and 12 years after the September 27, 2000 closing of the case. The Special Fund, however, asserts that the carrier continued to make payments on the 2005 claim that it knew were partially attributable to injuries sustained by claimant in connection with the 1999 claim and that, consequently, three years did not pass from the date of the last payment of compensation, thereby precluding liability from shifting under Workers’ Compensation Law § 25-a. We note that “[p]ayments that are made voluntarily, and in recognition of the employer’s liability, are considered advance compensation and will prevent the transfer of liability to the Special Fund” … . Significantly, “whether an advance payment of compensation has been made is a factual question for the Board to resolve, and its determination in this regard, if supported by substantial evidence in the record as a whole, will not be disturbed” … .

Upon reviewing the record, substantial evidence supports the Board’s finding that the carrier did not make an advance payment of compensation. There is no indication that the carrier knowingly made payments on the 2005 claim that were partially to compensate claimant for injuries sustained in connection with the 1999 claim. Matter of Wetterau v Canada Dry, 2015 NY Slip Op 00672, 3rd Dept 1-29-15

 

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