                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 8, 2015                   520633
________________________________

In the Matter of the Claim of
   GLEN GUADAGNO,
                    Respondent,
      v

RIC STEEL ERECTORS et al.,
                    Appellants,
      and
                                            MEMORANDUM AND ORDER
SPECIAL FUND FOR REOPENED
   CASES,
                    Respondent.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   September 16, 2015

Before:   Lahtinen, J.P., Egan Jr., Devine and Clark, JJ.

                             __________


      William O'Brien, State Insurance Fund, Endicott (Scott B.
Anglehart of counsel), for appellants.

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

                             __________


Devine, J.

      Appeal from a decision of the Workers' Compensation Board,
filed April 17, 2014, which ruled, among other things, that the
State Insurance Fund was not entitled to the payment of interest
from the Special Fund for Reopened Cases on certain payments for
                              -2-                520633

claimant's medical expenses pursuant to Workers' Compensation Law
§ 25 (1) (f).

      Claimant suffered a work-related injury in 1981 and
established a claim for workers' compensation benefits. The
State Insurance Fund (hereinafter SIF), the employer's workers'
compensation carrier, made the last payment of compensation in
1989 and the case was closed. In 2001, SIF sought to transfer
liability for the claim to the Special Fund for Reopened Cases
pursuant to Workers' Compensation Law § 25-a. In 2007, the
Workers' Compensation Board found that Workers' Compensation Law
§ 25-a was applicable and transferred liability to the Special
Fund as of October 23, 1999. The parties thereafter agreed that
the Special Fund would pay a total of $680,581.92 in full
satisfaction of SIF's reimbursement request, and the Special Fund
remitted the final payment on October 22, 2010.

      In December 2010, SIF requested that, pursuant to Workers'
Compensation Law § 25 (1) (f), the Special Fund pay SIF interest
in the amount of $315,651.14 on the reimbursed medical expenses.
Following hearings, a Workers' Compensation Law Judge determined
that, among other things, SIF was entitled to interest pursuant
to Workers' Compensation Law § 25 (1) (f), but limited the amount
to interest on a $4,069.32 award made in 2005 for medical and
transportation expenses. Upon appeal, the Board disagreed and
held that Workers' Compensation Law § 25 (1) (f) does not apply
to the transfer of claims under Workers' Compensation Law § 25-a.
Therefore, the Board determined that SIF is not entitled to the
interest provided for in Workers' Compensation Law § 25 (1) (f),
including the interest on the 2005 award for $4,069.32, and the
Board retroactively modified prior decisions on this claim to
remove all references to the statute. The employer and SIF now
appeal.
      We affirm. The issue presented to this Court is whether
Workers' Compensation Law § 25 (1) (f) applies to medical
expenses paid by an employer or its workers' compensation carrier
during a time that the Special Fund is ultimately determined to
be liable for the claim, but prior to the transfer of liability
to the Special Fund by the Board pursuant to Workers'
Compensation Law § 25-a. "Inasmuch as the issue before us is one
of statutory interpretation for the courts, the Board's decision
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is not entitled to deference" (Matter of Krausa v Totales
Debevoise Corp., 84 AD3d 1545, 1546 [2011] [citation omitted];
see Matter of LaCroix v Syracuse Exec. Air Serv., Inc., 8 NY3d
348, 352-353 [2007]). Nevertheless, we agree with the Board's
interpretation that SIF is not entitled to interest pursuant to
Workers' Compensation Law § 25 (1) (f).

      Workers' Compensation Law § 25 (1) (f) states: "Whenever
compensation is withheld solely because a controversy exists on
the question of liability as between insurance carriers, surety
companies, the special disability fund, the [Special Fund], or an
employer, the [B]oard may direct that any carrier, surety
company, the special disability fund, [or] the [Special Fund]
shall immediately pay compensation and bills for medical care
. . . pending determination of such issue. Any such payment or
payments shall not be deemed an admission against interest by the
carrier, surety company, special disability fund or the [Special
Fund]. After final determination, the parties shall make the
necessary and proper reimbursement including the payment of
simple interest at the rate established by [CPLR 5004] in
conformity with such determination." Here, SIF, as the
employer's workers' compensation carrier, was obligated to pay
claimant's medical expenses until liability for the claim was
transferred to the Special Fund (see Workers' Compensation Law
§ 13; Matter of Martin v New York Tel., 46 AD3d 1136, 1137
[2007]). The Board, as such, did not direct SIF to pay
claimant's medical expenses pending the transfer of liability
pursuant to Workers' Compensation § 25-a, the sole criterion of
which was whether the application to reopen was "made more than
seven years from the date of injury and more than three years
after the last payment of compensation" (Matter of Thurston v
Consolidated Edison Co. of N.Y., Inc., 115 AD3d 1143, 1144 [2014]
[internal quotation marks and citations omitted]; see Matter of
Khomitch v Crotched Mtn. Community, 120 AD3d 1459, 1461 [2014]).
In our view, the language of Workers' Compensation Law § 25 (1)
(f) reflects that it was intended for controversies where the
Board directs an entity to make certain payments on a claim
pending the resolution of a dispute regarding liability, which
could otherwise be deemed an admission of liability. That
situation does not exist here. Accordingly, the interest
provision included in Workers' Compensation Law § 25 (1) (f) is
                              -4-                  520633

inapplicable to transfers of liability under Workers'
Compensation Law § 25-a and the Board's decision is affirmed.

      We have examined and are unpersuaded by the remaining
argument advanced by the employer and SIF.

     Lahtinen, J.P., Egan Jr. and Clark, JJ., concur.



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
