                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 8, 2015                    520632
________________________________

In the Matter of the Claim of
   DEBORAH PALAZZOLO,
                    Claimant,
      v

DUTCHESS COUNTY,
                     Appellant,              MEMORANDUM AND ORDER
     and

SPECIAL FUND FOR REOPENED
   CASES,
                    Respondent.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:    September 14, 2015

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

                              __________


      Ryan, Roach & Ryan, LLP, Kingston (Jill M. Johnson of
counsel), for appellant.

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

                              __________


Clark, J.

      Appeal from a decision of the Workers' Compensation Board,
filed April 18, 2014, which ruled that claimant's case was not
truly closed for the purpose of shifting liability to the Special
Fund for Reopened Cases pursuant to Workers' Compensation Law
§ 25-a.
                              -2-                520632

      On July 20, 2000, claimant suffered a work-related injury
to her left arm but, since her lost work time did not exceed the
waiting period, no application for lost wages was submitted and
no finding was made as to permanency or any degree thereof.
Diagnostic medical tests were authorized and, after an appearance
on June 12, 2001, the employer was directed to produce payroll
records and a C-240 statement of wage earnings for purposes of
calculating average weekly wages, and the issue of permanency was
left unresolved. When claimant later made further requests for
medical authorization in 2013, the employer requested that
liability be transferred pursuant to Workers' Compensation Law
§ 25-a. The employer did not provide the C-240 until May 17,
2013, after claimant applied for further medical treatment and
the Special Fund for Reopened Cases was put on notice. At a
hearing, claimant testified that, other than a weight limit on
lifting, she had continued to perform her job duties for the
employer, albeit with some difficulty and pain that had recently
increased, and had been continually compensated at her normal
rate of pay. A Workers' Compensation Law Judge denied the
employer's request to transfer liability, finding that the case
was never truly closed, as there were directives for the carrier
to produce payroll records and for both sides to submit
permanency medical reports, and there was an outstanding issue of
average weekly wages. Upon review, the Workers' Compensation
Board affirmed. The employer appeals.

      Pursuant to Workers' Compensation Law § 25-a, "liability
shifts from the carrier [or self-insured employer] to the Special
Fund when an application to reopen a closed case is made more
than seven years after the date of injury and three years
following the last payment of benefits" (Matter of Zogaria v
Quebecor World USA Inc., 125 AD3d 1090, 1091 [2015] [internal
quotation marks and citations omitted]; see Matter of Pankiw v
Eastman Kodak Co., 123 AD3d 1388, 1389 [2014]). However, even
when the required time periods have elapsed, liability will not
shift unless the case "was truly closed . . . [, which] is a
factual determination for the Board to resolve based primarily
upon whether any further proceedings [were] contemplated [at the
time of the presumed closing] with regard to issues concerning
the payment of compensation" (Matter of Hosey v Central N.Y.
DDSO, 91 AD3d 993, 994 [2012] [internal citations omitted]; see
Matter of Zogaria v Quebecor World USA Inc., 125 AD3d at 1091;
                              -3-                  520632

Matter of Porter v New York State Elec. & Gas Corp., 113 AD3d
987, 988 [2014]).

      Here, although more than seven years had passed since
claimant's July 2000 injury, the record supports the Board's
factual determination that, at the time that the employer
requested that liability be shifted, it had not submitted the
requested C-240, and the issues of permanency and average weekly
wages had not been resolved. While no determination had yet been
made whether claimant was entitled to lost wages or other
compensation, the record reflects that further proceedings were
contemplated. Accordingly, the Board's decision that the case
was not truly closed was supported by substantial evidence and
will not be disturbed (see Matter of Hunter v Tops Mkt., Inc.,
125 AD3d 1092, 1093 [2015]; Matter of Pankiw v Eastman Kodak Co.,
123 AD3d at 1389-1390; cf. Matter of Zogaria v Quebecor World USA
Inc., 125 AD3d at 1091; Matter of Palermo v Primo Coat Corp., 88
AD3d 1042, 1043 [2011], lv dismissed 18 NY3d 810 [2012]; Matter
of Bates v Finger Lakes Truck Rental, 41 AD3d 957, 959-960
[2007]).

     Egan Jr., J.P., Rose and Devine, JJ., concur.



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
