                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 17, 2016                    521442
________________________________

In the Matter of the Claim of
   PATRICE GIANSANTE,
                    Respondent,
      v

SENECA CAYUGA ARC et al.,
                    Respondents,
      and                                   MEMORANDUM AND ORDER

SPECIAL FUND FOR REOPENED
   CASES,
                    Appellant.

WORKERS' COMPENSATION BOARD,

                    Respondent.
________________________________


Calendar Date:   February 10, 2016

Before:   Peters, P.J., Garry, Rose, Devine and Clark, JJ.

                             __________


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

      Hamberger & Weiss, Rochester (Ronald E. Weiss of counsel),
for Seneca Cayuga ARC and others, respondents.

                             __________


Clark, J.

      Appeal from a decision of the Workers' Compensation Board,
filed November 17, 2014, which ruled that liability shifted to
the Special Fund for Reopened Cases pursuant to Workers'
Compensation Law § 25-a.
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      Claimant sustained a work-related injury to her right ankle
in April 2006 and was awarded workers' compensation benefits. In
2007, claimant was found to have a 15% schedule loss of use of
the right foot. Claimant's orthopedic surgeon requested
authorization for surgery on the ankle in 2011 and the surgery
was performed in February 2012. In March 2013, a Workers'
Compensation Law Judge (hereinafter WCLJ) found no compensable
lost time from the date of surgery to March 27, 2013.

      In May 2013, claimant's surgeon reported that claimant had
reached maximum medical improvement and concluded that she had a
permanent partial disability. By stipulation of the parties, a
WCLJ classified claimant as having a 71% permanent partial
disability and rescinded the prior schedule loss of use award.
The employer's workers' compensation carrier thereafter requested
that payment of benefits be transferred to the Special Fund for
Reopened Cases pursuant to Workers' Compensation Law § 25-a.
Following a hearing, a WCLJ determined that Workers' Compensation
Law § 25-a applied and directed that liability be shifted to the
Special Fund effective February 9, 2012. Upon review, the
Workers' Compensation Board modified, affirming the transfer of
liability to the Special Fund, but finding the transfer effective
September 4, 2011. The Special Fund now appeals.

      We affirm. "Workers' Compensation Law § 25-a provides that
liability for a claim shifts to the Special Fund where a workers'
compensation case that was fully closed is reopened more than
seven years after the underlying injury occurred and more than
three years after the last payment of compensation" (Matter of
Hosey v Central N.Y. DDSO, 91 AD3d 993, 994 [2012] [internal
quotation marks and citations omitted]; see Matter of Hunter v
Tops Mkt., Inc., 125 AD3d 1092, 1093 [2015]). Even in situations
such as this, where the statutory time periods have been
satisfied, liability will shift only if the case has been truly
closed (see Matter of Mucci v New York State Dept. of Corr., 98
AD3d 1223, 1223 [2012]; Matter of Palermo v Primo Coat Corp., 88
AD3d 1042, 1042 [2011], lv dismissed 18 NY3d 810 [2012]).
"Whether a case is truly closed is a factual determination for
the Board to resolve based primarily upon whether any further
proceedings are contemplated with regard to issues concerning the
payment of compensation" (Matter of Hosey v Central N.Y. DDSO, 91
                                 -3-                521442

AD3d at 994 [citation omitted]; see Matter of Porter v New York
State Elec. & Gas Corp., 113 AD3d 987, 988 [2014]).

      Here, the Board determined that the case was truly closed
as of the March 2013 decision by the WCLJ. The Special Fund
argues that further proceedings were contemplated at the time of
that decision regarding the issue of compensable lost time for
the time period following claimant's surgery, precluding a
finding that the case was truly closed. We disagree. The record
reflects that compensation for that time period had previously
been held in abeyance. Following a hearing on the issue in March
2013, however, the WCLJ found no compensable lost time for that
period.1 While we note that the WCLJ stated that his finding was
made "without prejudice," he made no reference to the submission
of further evidence or to any further proceedings being
contemplated on this claim and no other action by the Board was
contemplated or required at that time (compare Matter of Runge v
National Baseball League, 93 AD3d 1015, 1016-1017 [2012]).
Accordingly, we find that the Board's decision that the March
2013 determination constituted a true closing of the case is
supported by substantial evidence and the transfer of liability
to the Special Fund was appropriate (see Matter of Porter v New
York State Elec. & Gas Corp., 113 AD3d at 988-989; Matter of
Nanni v Source Corp., 98 AD3d 1225, 1227 [2012]; Matter of
Rathburn v D'Ella Pontiac Buick GMC, Inc., 61 AD3d 1293, 1294-
1295 [2009]).

         Peters, P.J., Garry, Rose and Devine, JJ., concur.




     1
        Claimant was also receiving workers' compensation
benefits related to a 2010 claim.
                        -4-                  521442

ORDERED that the decision is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
