Claim of Pietrocola v. Colony Liquor Distributors, Inc.

Nov 7, 1991
Versions:177 A.D.2d 776
576 N.Y.S.2d 63
1991 N.Y. App. Div. LEXIS 14348

Appeals from a decision and an amended decision of the Workers’ Compensation Board, filed September 15, 1989 and September 19, 1990, which, inter alia, ruled that claimant’s case had been improperly closed.

Whether a case has been "closed” for purposes of Workers’ Compensation Law § 25-a is a question of fact (see, Matter of Scalesse v Printing Adv. Corp., 30 NY2d 234, 237). The record here discloses that the case was first reopened within seven years of the date of the accident; thus the employer’s workers’ compensation insurance carrier continued to be responsible at that point for claimant’s medical bills (see, Workers’ Compensation Law § 25-a [1]). However, while the case had specifically been reopened to determine the question of whether surgery was necessary, it was closed without resolving that issue. Under these circumstances, the conclusion by the Workers’ Compensation Board that such a closing was not a true closing because of a failure to resolve the surgery issue was proper (see, Matter of Gyory v Fairchild Indus., 151 AD2d 956, appeal dismissed 74 NY2d 945), and because the initial reopening was within the seven-year time period, liability remained with the carrier (see, supra).

Mahoney, P. J., Casey, Mikoll, Mercure and Crew III, JJ., *777concur. Ordered that the decision and amended decision are affirmed, without costs.