                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: January 29, 2015                     518110
________________________________

In the Matter of the Claim of
   JAMES WETTERAU,
                    Claimant,
      v

CANADA DRY et al.,
                      Respondents,
     and                                      MEMORANDUM AND ORDER

SPECIAL FUND FOR REOPENED
   CASES,
                    Appellant.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   December 16, 2014

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

                               __________


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

      Jones Jones, LLC, New York City (Sarah Thomas of counsel),
for Canada Dry and another, respondents.

                               __________


Rose, J.

      Appeal from a decision of the Workers' Compensation Board,
filed June 11, 2013, which, among other things, ruled that
liability shifted to the Special Fund for Reopened Cases pursuant
to Workers' Compensation Law § 25-a.
                              -2-                518110

      On December 3, 1999, while working as a warehouse manager
for the employer, claimant injured his back when he slipped and
fell against the bumper of a truck. He filed a claim for
workers' compensation benefits and, after having back surgery, he
returned to work. A Workers' Compensation Law Judge
(hereinafter WCLJ) established the claim for a work-related
injury to claimant's back and awarded him benefits. The WCLJ
closed the case on September 27, 2000.

      Thereafter, on July 16, 2005, while working for the same
employer, claimant stepped backwards on a pallet and again
injured his back. He filed a second claim for workers'
compensation benefits. A WCLJ established the claim for work-
related injuries to claimant's back and left ankle, awarded him
benefits and ultimately classified him, in August 2008, as
permanently partially disabled. The workers' compensation
carrier continued to make payments on the 2005 claim thereafter.

      Both claims were subsequently reopened and a hearing was
conducted on May 3, 2012 to consider the issues of apportionment
between the two claims and the carrier's request for relief under
Workers' Compensation Law § 25-a with respect to the 1999 claim.
Following this hearing, the WCLJ concluded that Workers'
Compensation Law § 25-a was applicable and that the 1999 claim
was the liability of the Special Fund for Reopened Cases, not the
carrier.1 The Workers' Compensation Board affirmed this decision
and the Special Fund now appeals.

      Workers' Compensation Law § 25-a (1) provides, in relevant
part, that "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, . . . if an award is made it shall
be against the special fund" (see Matter of Ercole v New York
State Police, 118 AD3d 1211, 1211-1212 [2014]; Matter of Thurston
v Consolidated Edison Co. of N.Y., 115 AD3d 1143, 1144 [2014]).


    1
        The WCLJ did not make a substantive ruling on the
apportionment issue, but continued the case and directed the
Special Fund to produce an apportionment report.
                              -3-                518110

"The purpose of [the statute] is to save employers and insurance
carriers from liability . . . for stale claims of injured
employees" (Matter of Riley v Aircraft Prods. Mfg. Corp., 40 NY2d
366, 369 [1976] [internal quotation marks and citation omitted]).
Here, the 1999 claim was reopened in 2012, approximately 13 years
after the December 3, 1999 injury and 12 years after the
September 27, 2000 closing of the case. The Special Fund,
however, asserts that the carrier continued to make payments on
the 2005 claim that it knew were partially attributable to
injuries sustained by claimant in connection with the 1999 claim
and that, consequently, three years did not pass from the date of
the last payment of compensation, thereby precluding liability
from shifting under Workers' Compensation Law § 25-a. We note
that "[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"
(Matter of Thurston v Consolidated Edison Co. of N.Y., 115 AD3d
at 1144). Significantly, "whether an advance payment of
compensation has been made is a factual question for the Board to
resolve, and its determination in this regard, if supported by
substantial evidence in the record as a whole, will not be
disturbed" (Matter of Guidice v The Herald Co., 88 AD3d 1175,
1176 [2011]).

      Upon reviewing the record, substantial evidence supports
the Board's finding that the carrier did not make an advance
payment of compensation. There is no indication that the carrier
knowingly made payments on the 2005 claim that were partially to
compensate claimant for injuries sustained in connection with the
1999 claim. Although the independent medical reports prepared in
connection with the 2005 claim indicate that his disability was
caused, in part, by his preexisting condition, they did not
establish that it was specifically due to his 1999 work-related
injury. Thus, they did not put the carrier on notice that the
payments it made were attributable to this prior injury. In
addition, the medical report of the neurologist who treated
claimant after both work-related injuries described the 1999
injury as a herniated disc to the lower right side of claimant's
back and the 2005 injury as affecting the lower left side of his
back and extremities, including his left leg, ankle and foot.
The neurologist further noted that claimant successfully
                              -4-                  518110

recovered from surgery following the 1999 injury. Inasmuch as
the injuries sustained in the two accidents were distinctly
different, and claimant recovered well from the 1999 injury, the
Board could rationally conclude that the carrier did not
voluntarily make payments on the 2005 claim knowing they also
encompassed the 1999 claim. In view of the foregoing, we find no
basis to disturb the Board's decision shifting liability to the
Special Fund pursuant to Workers' Compensation Law § 25-a under
the circumstances presented here (see Matter of Clark v SUNY
Upstate Med. Ctr., 73 AD3d 1408, 1409 [2010]; compare Matter of
Scoppo v American Brake Shoe Co., 43 AD2d 603, 604 [1973]; Matter
of Gillette v Staub & Son, 8 AD2d 896, 897 [1959]). Furthermore,
we do not find that the Board's decision constitutes a departure
from its prior precedent.

     Lahtinen, J.P., McCarthy, Lynch and Clark, JJ., concur.



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
