                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 11, 2015                     518900
________________________________

In the Matter of the Claim of
   DAVID BANK,
                    Respondent,
      v

VILLAGE OF TUCKAHOE et al.,                 MEMORANDUM AND ORDER
                    Respondents,
      and

SPECIAL FUND FOR REOPENED
   CASES,
                    Appellant.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   May 1, 2015

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

                               __________


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

      Stewart Greenblatt Manning & Baez, Syosset (Jacqueline D.
Condon of counsel), for Village of Tuckahoe and another,
respondents.

                               __________
                              -2-                518900

Lynch, J.

      Appeal from a decision of the Workers' Compensation Board,
filed December 5, 2013, which ruled that liability shifted to the
Special Fund for Reopened Cases pursuant to Workers' Compensation
Law § 25-a.

      In June 2005, claimaint suffered a work-related injury to
his left knee and compensation benefits were paid up to June 20,
2005, when plaintiff returned to work. In April 2012, claimant's
physician requested authorization for an MRI. The request was
granted and an MRI was performed on April 23, 2012, showing a
medial and lateral meniscal tear. On June 26, 2012, the
physician requested authorization to perform surgery, which was
promptly granted and surgery was performed in late July 2012.
Thereafter, the self-insured employer and its third-party
administrator raised the issue of shifting liability to the
Special Fund for Reopened Cases pursuant to Workers' Compensation
Law § 25-a. Following a hearing, a Workers' Compensation Law
Judge determined that this section did not apply. Upon review,
the Workers' Compensation Board reversed and shifted liability,
prompting this appeal by the Special Fund.1

      We reverse. Pursuant to Workers' Compensation Law § 25-a,
the Special Fund becomes liable for claims that are reopened more
than seven years from the date of the injury and three years
after the last payment of compensation (see Matter of Donnelly v
Alden Cent. Schools, 83 AD3d 1368, 1368 [2011]). There is no
dispute that this case was initially closed as of June 20, 2005.
In its amended decision, the Board determined that the case was
first reopened in April 2012 when the MRI was requested, but


    1
        We recognize that the Board subsequently amended its
decision while reaching the same conclusion. Since these
decisions are not materially different, the parties have fully
briefed the merits as addressed in the amended decision and there
is no claim of prejudice, we will treat this appeal as having
been taken from the amended decision (see Madigan v ARR ELS, 126
AD3d 1262, 1263 n [2015]; cf. Matter of West v Titan Express,
Inc., 115 AD3d 1045, 1046 [2014]).
                                 -3-                  518900

closed once that application was approved. Finding that the case
was again reopened when surgery was requested on June 26, 2012,
the Board determined that the requisite seven-year time period
had passed, shifting liability to the Special Fund.

      This sequence calls into question whether the case was
"truly closed" when the MRI request was approved.2 We have
previously recognized that a "decision authorizing [an] MRI
[does] not constitute a true closing of the case as [the]
claimant's future treatment depended upon the results of the MRI
and, thus, further action was contemplated although not planned
at that time" (Matter of Barker v Buffalo Color Corp., 32 AD3d
1138, 1139 [2006]; see Matter of Porter v New York State Elec. &
Gas Corp., 113 AD3d 987, 988 [2014]). The same holds true here.
As such, we conclude that the Board erred in concluding that the
case was closed when the MRI was authorized. Correspondingly,
since the case was reopened when the MRI was requested in April
2012, within the statutory seven-year period, liability does not
shift to the Special Fund.

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


      ORDERED that the decision is reversed, without costs, and
matter remitted to the Workers' Compensation Board for further
proceedings not inconsistent with this Court's decision.




                                ENTER:




                                Robert D. Mayberger
                                Clerk of the Court


     2
        The Special Fund does not raise any issue in its brief
concerning the three-year compensation period.
