                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: September 4, 2014                   518297
________________________________

In the Matter of the Claim of
   TATIANA KHOMITCH,
                    Respondent,
      v

CROTCHED MOUNTAIN COMMUNITY
   et al.,
                    Appellants,
      and                                   MEMORANDUM AND ORDER

SPECIAL FUND FOR REOPENED
   CASES,
                    Respondent.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   August 21, 2014

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

                             __________


      Walsh & Hacker, Albany (Sean F. Nicolette of counsel), for
appellants.

      Buckley, Mendelson, Criscione & Quinn, PC, Albany (Richard
M. Goldman of counsel), for Tatiana Khomitch, respondent.

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

                             __________
                               -2-                518297

Garry, J.

      Appeal from a decision of a panel of the Workers'
Compensation Board, filed April 26, 2013 which, upon remittal
from the full Board, rescinded the transfer of liability to the
Special Fund for Reopened Cases pursuant to Workers' Compensation
Law § 25-a, without prejudice.

      Claimant was injured in 2004 and, after her case was
established, she was paid compensation through February 2007. In
2011, claimant requested reimbursement for unpaid medical bills
totaling approximately $130 and compensation for seven months of
lost time in 2010. The parties entered into a stipulation on
September 21, 2011, agreeing to resolve all outstanding issues,
with the workers' compensation carrier paying $4,750 to claimant
as reimbursement for medical and transportation expenses
(hereinafter M & T)1 and a finding of no compensable lost time
after 2007. The carrier then sought to transfer liability for
the claim to the Special Fund for Reopened Cases pursuant to
Workers' Compensation Law § 25-a.

      The Special Fund asserted in response that the payment for
M & T was, in actuality, compensation for lost time, but was
labeled "M & T" in an attempt to create an improper basis for
transfer of liability under Workers' Compensation Law § 25-a. A
Workers' Compensation Law Judge directed the parties to produce
information to explain the basis for the payment, and a panel of
the Workers' Compensation Board initially reversed, determining
that a payment of M & T does not constitute compensation and,
thus, liability transferred to the Special Fund. The Board panel
further concluded that the Special Fund has no standing to
challenge M & T reimbursement. The full Board later rescinded
that decision, and returned the matter to the Board panel for
further consideration. Upon further review, the Board panel
concluded that, although M & T reimbursement is not a payment of
compensation within the meaning of Workers' Compensation Law
§ 25-a, the Special Fund has standing to litigate whether the


     1
        References in the parties' briefs and the records to
mileage and transportation are apparently erroneous.
                              -3-                518297

payment made to claimant herein was, in fact, an advance payment
of compensation that would preclude transfer of liability. The
Board panel also determined that questions of fact exist in that
regard, and rescinded the transfer of liability to the Special
Fund, without prejudice, pending production of evidence
demonstrating that the payment to claimant was for medical or
travel expenses. The employer and carrier appeal from this
decision.

      The transfer of liability to the Special Fund "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
Workers' Compensation Law § 25-a [1]). Voluntary payments that
are made during the relevant time frame and in recognition of the
employer's liability constitute advance compensation that will
prevent transfer of liability to the Special Fund (see Matter of
Thurston v Consolidated Edison Co. of N.Y., Inc., 115 AD3d at
1144; Matter of Schroeder v U.S. Foodservice, 107 AD3d 1135, 1136
[2013]). Moreover, while the Special Fund does not have standing
"to litigate the primary issues of compensability of the
underlying claim for benefits" or "to reopen a claimant's case
and contest the compensability of the claim," it does have
standing with respect to proceedings involving claims against
such fund (Matter of Ruffino v Rosen & Sons, 142 AD2d 177, 180
[1988], affd on op below 74 NY2d 861 [1989] [internal quotation
marks and citation omitted]; see Matter of McDonald v Water
Tunnel Contrs., 51 AD3d 1151, 1152-1153 [2008]).

      Here, it is undisputed that a true payment of M & T would
not preclude transfer of liability to the Special Fund because
M & T does not constitute compensation within the meaning of the
statute. The Special Fund argues, however, that the record is
unclear regarding whether the $4,750 M & T payment was a
reimbursement for out-of-pocket medical expenses, or a disguised
payment of indemnity benefits that would preclude transfer of
liability. As the Special Fund is challenging whether an advance
payment was made for the purposes of Workers' Compensation Law
§ 25-a – an issue involving a claim against the Special Fund –
                              -4-                  518297

the Board properly concluded that the Special Fund has standing
(see e.g. Matter of Iannaci v Independent Cement Corp., 66 AD3d
1194, 1195-1196 [2009]). Contrary to arguments of the employer,
carrier and claimant, the Board adequately distinguished its
prior precedent holding that a payment of M & T does not
constitute compensation, explaining that this was not the basis
of the argument by the Special Fund. Finally, we note that
because the Board's decision "reach[ed] a potentially dispositive
threshold legal issue" – i.e., standing – it is appealable
despite the Board's remittal to the Workers' Compensation Law
Judge for further development of the record (Matter of Hosler v
Smallman, 106 AD3d 1218, 1219 [2013] [internal quotation marks
and citations omitted]).

     McCarthy, J.P., Egan Jr., Lynch and Clark, JJ., concur.



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
