Claim of Kirschner v. RoweClaim of Kirschner v. Rowe
Appeal from a decision of the Workers’ Compensation Board, filed May 22, 1987, which, inter alia, imposed liability on the Special Fund for Reopened Cases.
On October 8, 1968, claimant injured her lower back while working. In 1971 her case was closed upon an $8,500 lump-sum settlement. In 1972, after claimant suffered severe back and leg pain, the Workers’ Compensation Board reopened the case for consideration of a change in condition not contemplated at the time of the lump-sum settlement. Thereafter, there were numerous hearings, closings and reopenings until a May 1, 1980 hearing, at which the case was closed until claimant’s doctor could testify. Apparently due to clerical tardiness, which we will not allow to affect the substantive outcome, no decision was filed until October 30, 1980. By letter dated May 7, 1980, claimant requested reopening. By decision filed October 9, 1980, the Board reopened. By decision filed August 2, 1984, claimant’s case was closed upon a finding of insufficient change in condition. On appeal, the Board reversed and directed that awards be made to claimant. Thereafter, claimant was awarded a temporary rate of $40 and the Special Fund for Reopened Cases was held liable. The Fund appealed, claiming that the May 1, 1980 closing was not a true closing for purposes of Workers’ Compensation Law § 25-a. The Board affirmed and this appeal by the Fund followed.
Workers’ Compensation Law § 25-a (2) imposes liability on the Fund where a worker seeks additional compensation after seven years from the date of the injury and three years from the date of the last payment of compensation. It appears in this case that these requirements have been met. However, the Fund is liable only for a reopened case which has been
In this case, the Board apparently determined that its October 9, 1980 reopening was of a closed case which shifted liability to the Fund. The Fund argues that the May 1, 1980 closing was not a true closing, while the employer’s workers’ compensation carrier argues for affirmance of the Board’s determination. The May 1, 1980 closing was made "until claimant requests a hearing and advises Board as to the availability of her [doctor] to testify”. Cases that have been closed until the claimant could present medical evidence have consistently been held not to be closed within the parameters of Workers’ Compensation Law § 25-a (see, Matter of Scalesse v Printing Adv. Corp.,
Decision reversed, without costs, and matter remitted to the Workers’ Compensation Board for further proceedings not inconsistent with this court’s decision. Mahoney, P. J., Casey, Weiss, Levine and Mercure, JJ., concur.