                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered:   November 5, 2015                  518465
________________________________

In the Matter of the Claim of
   ELENA STRUJAN,
                    Respondent-
                    Appellant,
      v

NEW YORK HOSPITAL et al.,
                    Appellants-
                    Respondents,
      and                                   MEMORANDUM AND ORDER

SPECIAL FUND FOR REOPENED
   CASES,
                    Respondent.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   September 17, 2015

Before:   Peters, P.J., McCarthy, Garry and Rose, JJ.

                             __________


      Gorman & Rankin, PC, New York City (David Sanua of
counsel), for appellants-respondents.

     Elena Strujan, New York City, respondent-appellant pro se.

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

                             __________
                              -2-                518465

Rose, J.

      Appeals from a decision and an amended decision of the
Workers' Compensation Board, filed November 19, 2013 and July 14,
2014, which ruled, among other things, that liability did not
shift to the Special Fund for Reopened Cases pursuant to Workers'
Compensation Law § 25-a.

      Claimant suffered a work-related injury in 1997. Her claim
for workers' compensation benefits was established, and she
received compensation of $360 for just over a week of lost time.
She also claimed that she suffered consequential psychiatric and
emotional injuries as a result of the work-related incident.
This claim was subjected to an extended and detailed review
process and ultimately denied in 2010, at which time the Workers'
Compensation Board noted that no further action was planned. In
2012, the employer and its third-party administrator (hereinafter
collectively referred to as the employer) formally requested a
transfer of liability to the Special Fund for Reopened Cases
pursuant to Workers' Compensation Law § 25-a. At a hearing to
address the employer's request, a Workers' Compensation Law Judge
(hereinafter WCLJ) found that the case had been truly closed and
transferred liability for the claim to the Special Fund. The
Board then reversed the finding of true closure and found, among
other things, that the merits of claimant's continued claims of
additional sites of injury and entitlement to further casually-
related lost wages remained undetermined. Both the employer and
claimant now appeal.

      Even where, as here, the requisite time frames have
elapsed, Workers' Compensation Law § 25-a operates to shift
liability for a claim to the Special Fund only if the case is
truly closed (see Matter of Hosey v Central N.Y. DDSO, 91 AD3d
993, 994 [2012]; Matter of Aposporos v NYNEX, 46 AD3d 1016, 1016
[2007]; Matter of Bates v Finger Lakes Truck Rental, 41 AD3d 957,
959 [2007]). Whether a case has been truly closed is a factual
determination to be made by the Board by evaluating whether any
further issues regarding payment of compensation were unresolved
at the time the case was closed (see Matter of Hunter v Tops
Mkt., Inc., 125 AD3d 1092, 1093 [2015]; Matter of Pankiw v
Eastman Kodak Co., 123 AD3d 1388, 1389 [2014]; Matter of Nanni v
                              -3-                518465

Source Corp., 98 AD3d 1225, 1226-1227 [2012]). "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]).

      In addition to the various psychological and emotional
injuries for which claimant alleged she was entitled to
compensation, the record reveals that, as early as 2003, a doctor
had opined that claimant suffered from episodic migraines
causally related to her work injury. Claimant also raised the
issue of her frequent migraines during a 2009 hearing before the
WCLJ. Despite this, in a 2010 reserved decision that denied her
claims for consequential emotional and psychiatric injury, the
WCLJ did not address whether claimant had established her
migraines as an additional site of injury. Similarly, the
Board's 2010 decision affirming the WCLJ did not discuss
claimant's alleged migraines. At the Workers' Compensation Law
§ 25-a hearing in 2012, claimant again noted that her migraines
were consistently reflected in her medical evaluations and that
she continued to suffer from them. Accordingly, we find the
Board's decision that the case was not truly closed to be
supported by substantial evidence.

      As for claimant's appeal, the remaining arguments raised in
her brief have been previously decided by the Board, and all
avenues of appeal regarding them have been exhausted.

     Peters, P.J., McCarthy and Garry, JJ., concur.
                              -4-                  518465

      ORDERED that the decision and amended decision are
affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
