                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: April 30, 2015                     519821
________________________________

In the Matter of the Claim of
   DARYL HOLLEY,
                    Respondent,
      v

SYRACUSE UTILITIES,
                      Respondent,
     and

PMA MANAGEMENT CORPORATION, On               MEMORANDUM AND ORDER
   Behalf of LEGION INSURANCE
   COMPANY in Liquidation,
                    Appellant,
      and

SPECIAL FUND FOR REOPENED
   CASES,
                    Respondent.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:    March 23, 2015

Before:    McCarthy, J.P., Egan Jr., Devine and Clark, JJ.

                              __________


      Hinman Howard & Kattel, LLP, Syracuse (Kelly C. O'Connor of
counsel), for appellant.

      Steven M. Licht, Special Funds Conservation Committee,
Albany (Jill B. Singer of counsel), for Special Fund for Reopened
Cases, respondent.

                              __________
                              -2-                519821

McCarthy, J.P.

      Appeal from a decision of the Workers' Compensation Board,
filed December 13, 2013, which ruled that liability for the claim
did not shift to the Special Fund for Reopened Cases pursuant to
Workers' Compensation Law § 25–a.

      Claimant injured his left knee while working in June 2001,
and he successfully applied for workers' compensation benefits.
In 2003, he was found to have a 25% schedule loss of use of his
left leg. No further benefits were awarded until June 2012, when
a Workers' Compensation Law Judge awarded benefits for work that
claimant had missed from August 2008 to October 2008 and directed
that they be credited against the prior schedule loss of use
award. In October 2012, the workers' compensation carrier for
the employer requested that liability for the claim be
transferred to the Special Fund for Reopened Cases (see Workers'
Compensation Law § 25-a). The Workers' Compensation Board
ultimately denied that request as premature, and the carrier
appeals.

      We affirm. "Pursuant to Workers' Compensation Law § 25-a,
the transfer of liability for a claim is appropriate when an
application to reopen a closed case is made more than seven years
from the date of injury and more than three years after the last
payment of compensation" (Matter of Thurston v Consolidated
Edison Co. of N.Y., Inc., 115 AD3d 1143, 1144 [2014] [internal
quotation marks and citations omitted]; see Matter of Khomitch v
Crotched Mtn. Community, 120 AD3d 1459, 1461 [2014]). The only
dispute here is when the last payment of compensation was made
and, in that regard, "a carrier may be deemed to have made a
payment of compensation 'by claiming a credit on a previous
overpayment'" (Matter of Negron v Sky View Haven Nursing Home,
Inc., 50 AD3d 1344, 1345 [2008], quoting Matter of Reed v Danz
Constr. Co., 9 AD2d 1004, 1005 [1959]). Moreover, "by claiming
credit for an overpayment, the carrier was relieved of making a
payment as of the date that it would have been required to make
such payment" (Matter of Negron v Sky View Haven Nursing Home,
Inc., 50 AD3d at 1345 [emphasis omitted]). The carrier here
would have been required to make payment to claimant in June
2012, when the Workers' Compensation Law Judge implicitly
                              -3-                  519821

rescinded the earlier schedule loss of use award and credited the
award of benefits for August 2008 to October 2008 against the
prior payment (see Workers' Compensation Law § 25 [3] [f]; Matter
of Negron v Sky View Haven Nursing Home, Inc., 50 AD3d at 1345-
1346; Matter of Reed v Danz Constr. Co., 9 AD2d at 1005).
Inasmuch as the carrier sought to shift liability to the Special
Fund less than a year later, the Board properly found that the
time periods of Workers' Compensation Law § 25-a had not been
met.

     Egan Jr., Devine and Clark, JJ., concur.



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
