                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: January 19, 2017                   522815
________________________________

In the Matter of the Claim of
   CHRISTOPHER WILLIAMS,
                    Respondent,
      v

GENERAL ELECTRIC et al.,
                    Appellants,             MEMORANDUM AND ORDER
      and

SPECIAL FUND FOR REOPENED
   CASES,
                    Respondent.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   December 13, 2016

Before:   Peters, P.J., Garry, Rose, Devine and Mulvey, JJ.

                             __________


      Stockton, Barker & Mead, LLP, Troy (Matthew R. Mead of
counsel), for appellants.

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

                             __________


Peters, P.J.

      Appeal from a decision of the Workers' Compensation Board,
filed June 5, 2015, which ruled, among other things, that
liability did not shift to the Special Fund for Reopened Cases
pursuant to Workers' Compensation Law § 25-a.
                              -2-                522815

      In May 2005, claimant sustained a work-related injury to
his lower back. His claim for workers' compensation benefits was
established in July 2005; however, because it was determined that
his disability was less than seven days, claimant did not have
any compensable lost time from work and received no lost wage
benefits. In 2014, the employer and its workers' compensation
carrier (hereinafter collectively referred to as the employer)
requested a transfer of liability to the Special Fund for
Reopened Cases pursuant to Workers' Compensation Law § 25-a. At
an ensuing July 2014 hearing to address the employer's request, a
Workers' Compensation Law Judge classified claimant as having a
permanent partial disability with a 25% loss of wage-earning
capacity and found that claimant had no compensable lost time
from the date of injury to July 25, 2014. The Workers'
Compensation Law Judge also found that the case had been truly
closed and transferred liability for the claim to the Special
Fund. On administrative review, the Workers' Compensation Board
reversed, finding that, although there had been true closure at
the time that the claim was established and no awards were made,
an August 2009 medical report from claimant's chiropractor raised
an issue of permanency, which constituted a change in claimant's
medical condition and reopened the claim, thereby warranting
removal of the Special Fund from notice and reinstatement of the
employer's liability for the claim. The employer now appeals.

      Workers' Compensation Law § 25-a provides that "liability
for a claim shifts to the Special Fund where a workers'
compensation case that was fully closed is reopened more than
seven years after the underlying injury occurred and more than
three years after the last payment of compensation" (Matter of
Hosey v Central N.Y. DDSO, 91 AD3d 993, 994 [2012] [internal
quotation marks, brackets and citations omitted]; see Matter of
Aposporos v NYNEX, 46 AD3d 1016, 1016 [2007]; Matter of Bates v
Finger Lakes Truck Rental, 41 AD3d 957, 959 [2007]). "A medical
report may be deemed an application to reopen if the report gives
the Board sufficient notice of a change in a claimant's
condition, as opposed to simply indicating continued disability
and treatment" (Matter of Gregorec v Brenners Furniture Co.,
Inc., 68 AD3d 1301, 1302 [2009] [internal quotation marks and
citations omitted]; see Matter of Donnelly v Alden Cent. Schools,
83 AD3d 1368, 1368 [2011]; Matter of Linz v Maine Endwell School
                              -3-                522815

Dist., 79 AD3d 1541, 1542 [2010]). Such medical report "should
not be given a strained interpretation, but should only be
interpreted as a basis to reopen if that was clearly the doctor's
intention," and the "mere mention of permanency in a medical
report, absent an opinion regarding the degree of permanency, is
insufficient to act as a request to reopen a case" (Matter of
Gregorec v Brenners Furniture Co., Inc., 68 AD3d at 1302
[internal quotation marks and citation omitted]; see Matter of
Jones v HSBC, 304 AD2d 864, 866 [2003]). "Such a decision of the
Board will not be disturbed when supported by substantial
evidence" (Matter of Anticola v Tops Mkts., 117 AD3d 1373, 1374
[2014] [citations omitted]; see Matter of Porter v New York State
Elec. & Gas Corp., 113 AD3d 987, 988 [2014]; Matter of Hunt v
Price Chopper/Golub Corp., 85 AD3d 1522, 1523 [2011]).

      Initially, inasmuch as claimant was not entitled to any
lost wage benefits when his claim was established for a work-
related injury, we agree with the Board that no further
proceedings concerning issues related to the payment of
compensation were contemplated at that time, and, therefore, the
case was truly closed in August 2005 (see Matter of Reddien v
Joseph Davis Inc., 136 AD3d 1144, 1145 [2016]; Matter of Hosey v
Central N.Y. DDSO, 91 AD3d at 994; see also Matter of Giansante v
Seneca Cayuga ARC, 137 AD3d 1450, 1451 [2016]). Nevertheless,
the record reflects that claimant continued to receive authorized
treatment for lower-back pain with his attending chiropractor,
and, following a reexamination of claimant on August 11, 2009,
claimant's chiropractor reported for the first time that claimant
exhibited a 25% permanent partial disability. Subsequent
examinations revealed no material change in claimant's condition,
and the chiropractor continued to report that claimant had a 25%
permanent partial disability. Inasmuch as the August 2009
medical report raised the issue of permanency and the degree of
claimant's disability, we find that substantial evidence supports
the Board's determination that the August 2009 medical report
constituted an application to reopen and that, as such, this case
was reopened within seven years of claimant's May 2005 injury
(see Matter of Reddien v Joseph Davis Inc., 136 AD3d at 1145;
Matter of Donnelly v Alden Cent. Schools, 83 AD3d at 1368-1369;
Matter of Linz v Maine Endwell School Dist., 79 AD3d at 1542-
1543; Matter of Gregorec v Brenners Furniture Co., Inc., 68 AD3d
                             -4-                  522815

at 1302-1303).

     Garry, Rose, Devine and Mulvey, JJ., concur.



     ORDERED that the decision is affirmed, without costs.




                            ENTER:




                            Robert D. Mayberger
                            Clerk of the Court
