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Special Fund Takes Back

Special Fund for Reopened Cases Is Liable for Worker's Back Injury:


A New York appellate court ruled that liability for a worker's back injury transferred to the Special Fund for Reopened Cases once the state Workers' Compensation Board issued a 2011 decision which "truly closed" the worker's claim.


Case: Porter v. New York State Electric and Gas Corp., No. 516949, 01/23/2014, published.


Facts: Gary Porter worked for the New York State Electric and Gas Corp. as a field service representative.


In May 2004, he struck his head on a concrete beam in a customer's basement after reading a meter.


Porter then filed a claim for workers' compensation benefits for injuries to his head, neck and back.


Procedural History: At a hearing in 2008, a workers' compensation law judge noted that Porter had suffered injuries to his neck and back in a 1992 work-related accident. By stipulation of the parties, the judge apportioned 22.5% of the liability for Porter's back and neck injuries to this 1992 accident.


After this hearing, Porter continued to experience back problems, and doctors diagnosed him with severe biforaminal stenosis. He continued to work, although he was classified as partially disabled because of his back.


In 2010, the Workers' Compensation Board authorized a magnetic resonance image of Porter's spine, and in April 2011, the board authorized back surgery for him.


On May 10, 2011, the carrier for the New York State Electric and Gas Corp. requested that liability for Porter's benefits be transferred to the Special Fund for Reopened Cases pursuant to Workers' Compensation Law Section 25-a.


Section 25-a (1) provides that liability shifts from a carrier to the Special Fund when an application to reopen a closed case is made more than seven years after the date of the injury and three years following the last payment of benefits.


A workers' compensation law judge denied the request.


The board modified the judge's opinion, finding liability had shifted to the Special Fund, and the Special Fund appealed.


Analysis: The Appellate Division's 3rd Department explained that the question of when and whether a worker's comp claim has closed for purposes of Section 25-a is a factual issue to be resolved by the board.


The court said substantial evidence supported the board's determination that Porter's claim had closed in April 2011, since the April 2011 order finally resolved the issue of treatment with respect to Porter's lumbar spine and made no mention of any further proceedings.


The court said the fact that Porter's medical condition changed after April 2011, which resulted in his need for further surgery, did not change the fact that the April 2011 order constituted "a true closing" of the case.


Disposition: Affirmed.


To read the decision, click here.


Source: WorkCompCentral

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