                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 12, 2015                   519932
________________________________

In the Matter of the Claim of
   TEREZE MARKU,
                    Claimant,
      v

ABM INDUSTRIES et al.,
                    Respondents,
      and                                   MEMORANDUM AND ORDER

AGGREGATE TRUST FUND,
                    Appellant.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   September 11, 2015

Before:   McCarthy, J.P., Egan Jr., Lynch and Clark, JJ.

                             __________


      Michael Miliano, New York State Insurance Fund, Albany
(Nancy E. Wood of counsel), for appellant.

      Jones Jones, LLC, New York City (M. Carmel Corcoran of
counsel), for ABM Industries and another, respondents.

                             __________


Egan Jr., J.

      Appeals (1) from a decision of the Workers' Compensation
Board, filed February 4, 2014, which ruled that Continental
Casualty Company is entitled to a refund of $18,765 from the
Aggregate Trust Fund, and (2) from a decision of said Board,
filed July 3, 2014, which denied the application of the Aggregate
Trust Fund for reconsideration and/or full Board review.
                               -2-                519932

      Claimant, who worked for a janitorial services company,
sustained work-related injuries to her back, right hip and right
leg, as well as a consequential depressive disorder, following an
August 2000 accident wherein she slipped on a strawberry while
cleaning a kitchen. A Workers' Compensation Law Judge
(hereinafter WCLJ) classified claimant as permanently partially
disabled, awarded her continuing payments of $225 per week and
directed that the employer's workers' compensation carrier
deposit into the Aggregate Trust Fund (hereinafter ATF) "an
amount equal to the present value of all unpaid benefits together
with such additional sum as is necessary for the administration
of such fund" (see Workers' Compensation Law § 27 [2]). The
WCLJ's decision further provided, "A supplemental decision will
follow which will detail the amount of the deposit. The carrier
is responsible for payments as directed until the deposit is made
into [the] ATF." By decision filed December 31, 2010, the
Workers' Compensation Board affirmed, continued the case and
referred the matter to the ATF "for an actuarial computation of
the deposit amount [due]." The Board further noted that
"[f]ollowing the issuance of a supplemental decision that
contains the amount of the deposit, the case can be marked for no
further action."1

      The actuarial computation was completed in July 2011, and
the present value of the award was calculated to be $126,848.83
as of November 17, 2011. However, despite repeated requests by
both the ATF and the carrier, a supplemental decision detailing
the sum due and directing the carrier to make the required
deposit was not issued. Following a hearing in January 2013, a
WCLJ found that the Board's December 2010 decision was sufficient
to direct the carrier's payment of the award to the ATF,
chastised the carrier for failing to do so and imposed a penalty
for what was deemed to be an "unnecessary hearing."

      While the carrier's application for Board review was
pending, the carrier deposited $126,848.83 with the ATF and
requested reimbursement in the amount of $18,765 – the latter sum


     1
        The carrier apparently did not perfect its subsequent
appeal of the Board's December 2010 decision to this Court.
                               -3-                519932

representing the weekly benefits that the carrier paid to
claimant between November 11, 2011 and June 22, 2013. A second
actuarial computation was performed, which computed the interest
on the award and deducted that amount ($12,402.32)2 from the sum
sought by the carrier, reducing the carrier's refund to
$6,344.68. A WCLJ directed the ATF to refund that amount to the
carrier, which the ATF did, and the carrier sought Board review.

      The Board rescinded the penalty previously imposed and, by
decision filed February 4, 2014, found that, because the promised
supplemental decision directing the carrier to deposit a specific
sum was not tendered, the carrier was not liable for interest on
the award and awarded the carrier a refund in the amount of
$18,765. The ATF's application for reconsideration and/or full
Board review was denied, and the ATF now appeals from both the
Board's February 2014 decision and the denial of its application
for reconsideration and/or full Board review.

      Workers' Compensation Law § 27 (2) was amended in 2007 to
require that where, as here, a permanent partial disability award
pursuant to Workers' Compensation Law § 15 (3) (w) is made on or
after July 1, 2007, such award must be paid into the ATF (see
Matter of Proulx v Burnett Process, 77 AD3d 1036, 1037 [2010];
Matter of Parkhurst v United Rentals Aerial Equip., Inc., 75 AD3d
702, 703 [2010], affd 17 NY3d 908 [2011]). Once the carrier
makes such a deposit, "it is relieved of liability and the ATF
assumes responsibility for all future payments to the
beneficiary" (Matter of Turdo v Dellicato Vineyards, 73 AD3d 143,
145 [2010]; see Workers' Compensation Law § 27 [3]; Matter of
Mace v Owl Wire & Cable Co., 284 AD2d 672, 674 [2001]). "As a
general principle, the obligation to pay the lump sum into the
ATF is fixed once the carrier is directed to pay it" (Matter of
Monahan v Founders Pavilion, Inc., 123 AD3d 1170, 1171 [2014]
[emphasis added, citations omitted]; see generally Matter of
Becker v Rauli & Sons, Inc., 88 AD3d 1040, 1041 [2011]; Matter of
Appley v American Food, 82 AD3d 1563, 1564 [2011]). Should the
carrier appeal that directive, "the carrier is not required to


     2
        The interest was computed from November 11, 2011 until
the carrier tendered payment to the ATF on July 5, 2013.
                              -4-                519932

pay the [lump-sum] amount [into the ATF] so long as it is . . .
making timely payments to the claimant as compensation becomes
due" (Matter of Monahan v Founders Pavilion, Inc., 123 AD3d at
1171; see Workers' Compensation Law § 23). However, in the event
that "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" (Matter of Monahan v Founders Pavilion, Inc., 123 AD3d
at 1171-1172 [internal quotation marks omitted]).

      Here, the WCLJ assessed interest on the underlying award
from November 11, 2011 to July 5, 2013 – reasoning that the
carrier should have paid the award following the issuance of the
Board's December 2010 decision. The Board disagreed, concluding
that, in the absence of a supplemental decision directing it to
tender a specific sum to the ATF in the first instance, the
carrier should not be liable for the interest assessed. Based
upon our review of the record, the relevant statutes and the
applicable case law, we cannot say that the Board's decision in
this regard was arbitrary and capricious or otherwise constituted
an abuse of discretion.

      First, contrary to the ATF's assertion, neither Workers'
Compensation Law § 27 (4) nor 12 NYCRR 393.2 addresses – much
less compels – an award of interest under the circumstances
presented here. Additionally, the ATF's argument on this point
ignores the fact that, as noted previously, the carrier's
obligation to pay is premised upon a specific directive to do so
(see Matter of Monahan v Founders Pavilion, Inc., 123 AD3d at
1171; see generally Matter of Becker v Rauli & Sons, Inc., 88
AD3d at 1041; Matter of Appley v American Food, 82 AD3d at 1564).
Here, the Board found (and the record clearly demonstrates) that
a supplemental decision detailing the amount due and directing
the carrier's deposit thereof – the issuance of which was
expressly contemplated by both the original WCLJ and the Board –
was never tendered. In conjunction therewith, the Board
implicitly – and, in our view, rationally – concluded that
neither the C-40 request for actuarial computation nor the
Board's December 2010 decision was sufficient to direct the
                                 -5-                  519932

carrier to make the required deposit.3 Hence, the Board
reasoned, absent the requisite directive to pay, the carrier
should not be compelled to pay interest.4 As we discern no basis
upon which to disturb the Board's conclusion in this regard, the
February 2014 decision is affirmed. The ATF's remaining
contentions, including its assertion that the Board abused its
discretion in denying the ATF's application for reconsideration
and/or full Board review, have been examined and found to be
lacking in merit.

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


         ORDERED that the decisions are affirmed, without costs.



                                ENTER:




                                Robert D. Mayberger
                                Clerk of the Court

     3
        Although the ATF cites Employer: Matter of Home Depot USA
(2011 WL 483972, 2011 NY Wkr Comp LEXIS 967 [WCB 8040 8901, Feb.
8, 2011]) for the proposition that a C-40 may suffice in this
regard, the cited case is distinguishable in that the parties
therein accepted the C-40 calculation without any request for
further documentation. Here, both the carrier and the ATF
repeatedly sought a supplemental decision on this point, thereby
evidencing an unwillingness to accept the actuarial calculation
without further review.
     4
        To the extent that the ATF relies upon this Court's prior
decision in Matter of Flynn v Managed Care, Inc. (100 AD3d 1115,
1115-1116 [2012]), we need note only that Flynn is
distinguishable in that the carrier in that case was expressly
directed to deposit a particular sum with the AFT and thereafter
withheld payment and paid the beneficiaries directly while
pursuing various appeals.
