Open Question About Whether Claimant Was Permanently Disabled Indicated Claimant’s Case Was Not Truly Closed in 2005—Transfer of Claim to the Special Fund (for Closed Cases) Properly Denied

The Third Department determined open questions about whether the claimant was permanently disabled demonstrated that claimant’s case was not truly closed in 2005.  Therefore transfer of the claim to the Special Fund was not warranted:

“Workers’ Compensation Law § 25-a shifts liability for a claim to the Special Fund where a workers’ compensation case that was fully closed is reopened more than seven years after the underlying injury occurred and more than three years after the last payment of compensation” … . “Whether there has been a true closing of the case is a factual issue for the Board to resolve and its determination in this regard will be upheld if supported by substantial evidence” … .

Here, a report based upon an independent medical examination of claimant was filed with the Board in 2005 in which the examiner opined that claimant had reached maximum medical improvement at that time and classified her as suffering from a mild degree of disability. Inasmuch as this report raised the issue of claimant having a permanent disability, which remained unresolved in 2011 when the employer requested that liability shift to the Special Fund, substantial evidence supports the Board’s decision that the case was not truly closed at that time and Workers’ Compensation Law § 25-a did not apply … . Matter of Kettavong v Livingston County SNF, 2015 NY Slip Op 04556, 3rd Dept 5-28-15