                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: December 3, 2015                   519727
________________________________

In the Matter of the Claim of
   BONNIE GOUTREMOUT,
                    Respondent,
      v

ADVANCE AUTO PARTS et al.,
                    Appellants,
      and                                   MEMORANDUM AND ORDER

SPECIAL FUND FOR REOPENED
   CASES,
                    Respondent.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   October 19, 2015

Before:   McCarthy, J.P., Rose, Devine and Clark, JJ.

                             __________


      Wolff, Goodrich & Goldman, LLP, Syracuse (Robert E. Geyer
Jr. of counsel), for appellants.

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

      Eric T. Schneiderman, Attorney General, New York City
(Steven Segall of counsel), for Workers Compensation Board,
respondent.

                             __________
                              -2-                519727

Devine, J.

      Appeals (1) from a decision of the Workers' Compensation
Board, filed December 10, 2013, which ruled that liability for
the claim did not shift to the Special Fund for Reopened Cases
pursuant to Workers' Compensation Law § 25-a, and (2) from a
decision of said Board, filed November 10, 2014, which denied a
request by the employer and its workers' compensation carrier for
reconsideration and/or full Board review.

      In December 2001, claimant sustained a work-related injury
to her right knee. In August 2005, claimant was awarded a 25%
schedule loss of use of her right leg, which was paid by the
workers' compensation carrier at that time, and the case was
closed. In November 2008, the claim was amended to include a
consequential left knee injury. Thereafter, in February 2009,
claimant filed a request for further action seeking authorization
for right knee replacement surgery, which was granted. In March
2011, claimant was awarded an overall 50% loss of use of her
right leg, which was then paid by the employer's workers'
compensation carrier. At a hearing in September 2012, the
employer and its carrier raised the issue of transfer of
liability to the Special Fund for Reopened Cases. Following a
hearing, the Workers' Compensation Law Judge shifted liability to
the Special Fund effective September 20, 2010. The Workers'
Compensation Board reversed, finding that Workers' Compensation
Law § 25-a relief was unavailable because the last payment of
compensation was made in March 2011, less than three years from
the request to shift liability to the Special Fund. The Board
denied the subsequent request for reconsideration and/or full
Board review. These appeals by the employer and the carrier
ensued.

      Liability for a claim shifts to the Special Fund "when an
application for compensation is made by an employee . . . after a
lapse of seven years from the date of the injury . . . and also a
lapse of three years from the date of the last payment of
compensation" (Workers Compensation Law § 25-a [1]). Here, both
of those time limitations were satisfied when claimant made an
application to reopen the claim in February 2009. The Special
Fund's "liability [was] triggered, as a matter of law, upon the
                              -3-                  519727

passage of time as provided by the statute" (Matter of Martin v
New York Tel., 46 AD3d 1136, 1137 [2007]; see Matter of De Mayo v
Rensselaer Polytech Inst., 74 NY2d 459, 462 [1989]; cf. Matter of
Scoppo v American Brake Shoe Co., 43 AD2d 603, 604 [1973]; Matter
of Gillette v Staub & Son, 8 AD2d 896 [1959]). Although relevant
to the period of retroactivity, the carrier's payment of
compensation in March 2011 and its September 2012 request that
liability be transferred to the Special Fund are not
determinative as to when that liability attached. To hold
otherwise would be contrary to the purpose of the statute, which
"is to shift the liability for paying stale claims to the
[Special] Fund" (Matter of Early v New York Tel. Co., 57 AD3d
1341, 1343 [2008] [internal quotation marks and citation
omitted]; see Matter of Ercole v New York State Police, 118 AD3d
1211, 1212-1213 [2014]).

      In view of the foregoing, the challenge to the denial of
the request for reconsideration and/or full Board review is
academic.

     McCarthy, J.P., Rose and Clark, JJ., concur.


      ORDERED that the decision filed December 10, 2013 is
reversed, without costs, and matter remitted to the Workers'
Compensation Board for further proceedings not inconsistent with
this Court's decision.

      ORDERED that the appeal from the decision filed November
10, 2014 is dismissed, as academic, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
