                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 26, 2015                    518943
________________________________

In the Matter of the Claim of
   JOHN DUDEK JR.,
                    Appellant,
      v
                                            MEMORANDUM AND ORDER
VICTORY MARKETS et al.,
                    Respondents.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   February 9, 2015

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

                             __________


     Peter W. Hill, Oneonta, for appellant.

      Gitto & Niefer, Binghamton (Jason Carlton of counsel), for
Victory Markets and another, respondents.

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

                             __________


Egan Jr., J.

      Appeal from a decision of the Workers' Compensation Board,
filed August 6, 2013, which ruled, among other things, that
claimant's claim could not be reopened pursuant to Workers'
Compensation Law § 123.

      In February 1986, claimant sustained a work-related injury
to his right knee. Claimant underwent knee surgery a few months
                              -2-                518943

later and, despite the fact that an award of workers'
compensation benefits had not been made, the workers'
compensation carrier for his employer paid him compensation from
August 1986 to October 1986. Claimant was cleared to return to
work on October 13, 1986, and no further compensation was paid.
Claimant reinjured his knee in 2001 and successfully applied for
workers' compensation benefits, although his physicians did not
draw any link between his knee condition and the 1986 injury.
Claimant was advised that he would need a knee replacement,
however, and he underwent that surgery in 2011. An independent
medical examination found that the knee replacement surgery was
60% attributable to the 1986 injury and 40% attributable to the
2001 injury. The employer and its carrier (hereinafter
collectively referred to as the employer) responded by arguing
that liability for the 1986 claim should be shifted to the
Special Fund for Reopened Cases pursuant to Workers' Compensation
Law § 25-a and that Workers' Compensation Law § 123 barred any
further payment of benefits. A Workers' Compensation Law Judge
conducted a hearing on the matter and agreed with the employer on
both counts. The Workers' Compensation Board affirmed, and
claimant now 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]). While
"[p]ayments that are made voluntarily, and in recognition of the
employer's liability, are considered advance compensation and
will prevent the transfer of liability to the Special Fund," no
such payments have been made here since claimant was cleared to
return to work in October 1986 (Matter of Thurston v Consolidated
Edison Co. of N.Y., Inc., 115 AD3d at 1144). Claimant points out
that, around the time that he returned to work in 1986, a
physician advised him to "follow up" in some manner to ensure
that he would receive benefits if his knee became symptomatic.
There is no indication that claimant did so or that any further
Board proceedings were contemplated, however, and the physician's
                              -3-                518943

vague instruction cannot be read as "display[ing] a clear
intention . . . to reopen the case" (Matter of Gregorec v
Brenners Furniture Co., Inc., 68 AD3d 1301, 1303 [2009]; see
Matter of Mucci v New York State Dept. of Corr., 98 AD3d 1223,
1224 [2012]; Matter of Early v New York Tel. Co., 57 AD3d 1341,
1343 [2008]). Therefore, substantial evidence supports the
finding of the Board that the case had been truly closed in 1986
and that a shift in liability to the Special Fund was appropriate
(see Matter of Mucci v New York State Dept. of Corrections, 98
AD3d at 1224; Matter of Early v New York Tel. Co., 57 AD3d at
1343).

      As a final matter, Workers' Compensation Law § 123 bars the
reopening of a case and award of benefits against the Special
Fund "after a lapse of eighteen years from the date of the injury
or death and also a lapse of eight years from the date of the
last payment of compensation" (see Matter of Zechmann v Canisteo
Vol. Fire Dept., 85 NY2d 747, 751 [1995]). "The question of
whether or not claimant's case is truly closed also determines
the applicability of Workers' Compensation Law § 123, as that
statute's time limits apply only to truly closed cases" (Matter
of Carubia v Colt Indus. [Crucible Steel], 12 AD3d 827, 828 n
[2004] [citation omitted]). Thus, because claimant's case was
truly closed in 1986 and no effort was made to reopen it until
2011, substantial evidence supports the Board's decision that the
provisions of Workers' Compensation Law § 123 apply. Claimant's
remaining contentions have been examined and found to be
unpersuasive.

     Lahtinen, J.P., McCarthy and Clark, JJ., concur.
                        -4-                  518943

ORDERED that the decision is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
