                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: December 4, 2014                   517975
________________________________

In the Matter of the Claim of
   SHARON MONAHAN, Deceased,
                    Claimant,
      v

FOUNDERS PAVILION, INC.,
   et al.,                                  MEMORANDUM AND ORDER
                    Appellants,
      and

AGGREGATE TRUST FUND,
                    Respondent.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   October 15, 2014

Before:   Lahtinen, J.P., McCarthy, Rose, Lynch and Clark, JJ.

                             __________


      Weiss, Wexler & Wornow, PC, New York City (Lauren M. Bilasz
of counsel), for appellants.

      William O'Brien, State Insurance Fund, Albany (Nancy W.
Wood of counsel), for Aggregate Trust Fund, respondent.

      Eric T. Schneiderman, Attorney General, New York City
(Steven Segall of counsel), for Workers' Compensation Board,
respondent.

                             __________
                              -2-                517975

Lahtinen, J.P.

      Appeal from a decision of the Workers' Compensation Board,
filed March 7, 2013, which, among other things, directed the
employer's workers' compensation carrier to make a deposit into
the aggregate trust fund pursuant to Workers' Compensation Law
§ 27 (2).

      A work-related injury in 2006 resulted in a Workers'
Compensation Law Judge (hereinafter WCLJ) classifying claimant in
2009 as having a permanent partial disability and directing the
workers' compensation carrier to make a deposit into the
aggregate trust fund (hereinafter ATF) (see Workers' Compensation
Law § 27 [2]). An administrative appeal by the employer and
carrier (hereinafter collectively referred to as the carrier) was
unsuccessful, as the Workers' Compensation Board affirmed the
WCLJ on December 28, 2009. That same day, the WCLJ rendered a
supplemental decision setting the ATF deposit at $127,241.44
payable by March 17, 2010. While appeals were pending from those
decisions,1 claimant died in April 2010 from causes unrelated to
the underlying injury. The carrier then requested that the
decisions directing it to make a lump-sum payment to the ATF be
rescinded because of claimant's death. The Board upheld the
decision by a 2 to 1 vote. Because there was a dissent, the
carrier was entitled to and sought full Board review. The full
Board affirmed the relevant decisions and imposed a frivolous
appeal penalty on the carrier of $500. The carrier now appeals.

      The carrier initially argues that it should not have to
make the payment into the ATF because claimant died at a time
when a stay on that payment was in effect and her death
extinguished the carrier's future financial obligation regarding
the claim. As a general principle, the obligation to pay the
lump sum into the ATF is fixed once the carrier is directed to
pay it (see Matter of Becker v Rauli & Sons, Inc., 88 AD3d 1040,
1041 [2011]; Matter of Marconi v Marshall, 284 App Div 728, 730


    1
        The Board's decision was appealed to this Court but was
not perfected, and the WCLJ's supplemental decision was appealed
to the Board.
                              -3-                517975

[1954]). During the time that an appeal is pending regarding the
lump-sum payment, the carrier is not required to pay the amount
so long as it is – as here – making timely payments to the
claimant as compensation becomes due (see Workers' Compensation
Law § 23; Matter of Appley v American Food, 82 AD3d 1563, 1564
[2011]). However, if the carrier ultimately loses its appeal and
the award directing payment into the ATF is affirmed, Workers'
Compensation Law § 27 (4) provides for payment of the lump sum
"as of the effective date of the original award" plus interest,
and adds that "[t]he foregoing provision shall apply in the event
of such review or appeal regardless of whether the widow or
widower or other parties in interest have died or the widow or
widower remarried subsequent to the date as of which the present
value of the original award was computed" (emphasis added). The
language of the statute is consistent with the conclusion that,
if the carrier's appeal is unsuccessful, then the obligation to
pay a lump sum into the ATF remains in effect as of the date that
payment was directed regardless of whether the claimant died
during the time the appeal was pending (see generally Matter of
Raynor v Landmark Chrysler, 18 NY3d 48, 56 [2011]; Majewski v
Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998]).

      The Board was not required, as alternatively urged by the
carrier, to recalculate the amount of its payment into the ATF in
light of payments that the carrier had made to claimant. The
carrier's payments to claimant during the pendency of the appeal
are accounted for and an adjustment provided by a credit in the
statute (see Workers' Compensation Law § 27 [4]; see also Matter
of Flynn v Managed Care, Inc., 100 AD3d 1115, 1115 [2012]).

      Finally, we find merit in the carrier's argument that there
was no basis for determining that its appeal to the full Board
was frivolous. The issue regarding the effect on the lump-sum
payment of claimant's death while an appeal was pending generated
a dissent from the Board, and the law was not so well settled as
to support the conclusion that the carrier's appeal was frivolous
(see Matter of Appley v American Food, 82 AD3d at 1565).

     McCarthy, Rose, Lynch and Clark, JJ., concur.

     ORDERED that the decision is modified, without costs, by
                              -4-                  517975

reversing so much thereof as imposed a penalty against the
employer's workers' compensation carrier pursuant to Workers'
Compensation Law § 23, and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
