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Case # 00425996
Date of Accident: 05/22/2004
District Office: NYC
Employer: New York City Fire Dept
Carrier: Special Funds Cons. Comm.
Carrier ID No.: W997001
Carrier Case No.:
Date of Filing of Decision: 05/30/2014
Claimant's Attorney: Allan Reich
Panel: Robert E. Beloten

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting held on February 11, 2014, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on June 25, 2013.

ISSUE

The issue presented for Mandatory Full Board Review is whether the requirements for shifting liability to the Special Funds Conservation Committee (Special Funds) under Workers' Compensation Law (WCL) § 25-a have been met.

The Workers' Compensation Law Judge (WCLJ) shifted liability to Special Funds pursuant WCL § 25-a, effective May 22, 2011, and removed the self-insured employer (SIE) from notice.

The Board Panel majority found that WCL § 25-a did not apply because there was a request to reopen the case (form C-27 and form RFA-1) before the expiration of the requisite seven years after the accident date.

The dissenting Board Panel member would have found that WCL § 25-a should be found to apply because the form C-27 filed by the claimant's treating physician was a request for further treatment and not a request to reopen, and the WCLJ correctly found that the case was truly closed

In its application for Mandatory Full Board Review, filed with the Board on July 23, 2013, the SIE contends that WCL § 25-a should be found to apply because although a form C-27 and form RFA-1 were filed within seven years from the date of accident, the case was subsequently truly closed during the August 2, 2011, hearing.

In its rebuttal, filed with the Board on August 14, 2013, the Special Funds contends that WCL § 25-a was correctly found not to apply to this case, as the case was reopened within seven years from the date of the accident, and there was no subsequent true closing.

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

The case is established for work-related injuries to the claimant's left knee and right ring finger, resulting from an accident that occurred on May 22, 2004, while claimant was working for the New York City Fire Department (FDNY). The claimant's average weekly wage was set as $1,389.42.

By decision filed on June 30, 2005, the claimant was awarded a 12.50% schedule loss of use of the leg, entitling him to 36 weeks of benefits.

On July 12, 2005, the SIE submitted a form C-8/8.6 (Notice That Payment of Compensation Has Been Stopped or Modified), indicating that the schedule loss of use award had been paid and the most recent payment had been mailed to the claimant on June 23, 2005.

After more than five years of no documented medical treatment, the claimant was seen by Dr. Ross on November 3, 2010. Per the form C-4.2 (Doctor's Progress Report), filed on December 14, 2010, Dr. Ross diagnosed "tear of medial cartilage or meniscus of knee, current." The attached narrative report indicates that there is patellofemoral crepitus, small effusion, pain medial joint line of the left knee. The x-rays demonstrated tri-compartmental degenerative changes worse in the medial joint space. Dr. Ross indicated that claimant had post-traumatic osteoarthritis of the knee with a tear of the medial meniscus. Authorization was requested for an MRI of the left knee.

On March 18, 2011, Dr. Ross filed a form C-27 (Medical Proof of Change in Condition in Support of Application for Reopening of Claim for Workers' Compensation, Volunteer Fire Fighters' or Volunteer Ambulance Workers' Benefits). On the form, Dr. Ross listed claimant's last date of treatment as February 28, 2011. He listed the condition not present at the time the case was last closed as "tri-compartmental degenerative changes in the medial space and post-traumatic osteoarthritis." The pathology that warranted a reopening of the case is listed as "patient has swelling and pain in the left knee and x-rays show tri-compartmental degenerative changes in the medial space." As for treatment, the doctor requests an MRI of the left knee and visco-elastic injections.

On May 12, 2011, the claimant filed a form RFA-1 (Claimant's Request for Further Action), wherein he asked for a reopening of the case based on the issues raised in the form C-27.

In response, the case was reopened and a hearing occurred on August 2, 2011. In the corresponding decision filed on August 8, 2011, medical treatment and care for established sites was authorized, and the WCLJ indicated that no further action is planned by the Board at that time. The corresponding form ECF-16.1 indicated that the case was closed.

On November 8, 2011, the Board issued a form EC-16.1 (Notice of Workers Compensation Hearing), indicating that a hearing was scheduled for December 2, 2011, on the issues of lost time and further causally related disability.

During the December 2, 2011, hearing, the claimant's attorney indicated that claimant had completed his treatment and that the claimant's treating physician indicated a 5% increase to the prior schedule loss of use. The SIE raised WCL § 25-a. The claimant indicated that he was currently working. The corresponding decision filed on December 8, 2011, indicated the case was continued.

On December 2, 2011, a medical narrative from the claimant's treating physician, Dr. Hecht, for treatment rendered on November 23, 2011, was submitted to the Board, diagnosing the claimant with derangement of the left knee, indicating that he advised the claimant of proper care and home exercises, and that the claimant was not interested in further intervention at that time. Dr. Hecht opined that the claimant has a of 25% schedule loss of use of the left leg.

During a hearing on February 15, 2012, the claimant testified that he continues to work for the FDNY. He lost some time from work in 2004 around when his accident occurred. He has worked light duty as a result of his workplace injury; however, he is not working light duty now. In 2011 he experienced a worsening in his condition.

At the conclusion of the claimant's testimony, the WCLJ found that WCL 25-a applied effective May 22, 2011, and granted the Special Fund's request to obtain an independent medical examination on the issue of schedule loss of use. The WCLJ's findings were memorialized in a decision filed on February 21, 2012.

LEGAL ANALYSIS

The Special Fund for Reopened Cases under WCL § 25-a becomes liable when a case is reopened more than seven years from the date of an injury and more than three years from the date of the last payment of compensation (WCL § 25-a; Matter of Gillette v Staub & Son, 8 AD2d 896 [1959]). The purpose of this statute is to shift liability for paying stale claims to the Special Funds (see Matter of Russel v Carborundum Company, 105 AD2d 541 [1984]). For WCL § 25-a to be applicable, there must have been a "true closing" of the case, which occurs when the case is closed with no further proceedings contemplated (see Matter of Casey v Hinkle Iron Works, 299 NY 382 [1949]; Matter of McGarry v Capatano & Grow Const. Co., 58 AD2d 372 [1977], aff'd 44 NY2d 946 [1978]).

A medical report may be deemed an application to reopen if the report gives the Board sufficient notice of a change in a claimant's condition, as opposed to simply indicating continued disability and treatment. Nevertheless, such a report should not be given a strained interpretation, but should only be interpreted as a basis to reopen if that was clearly the doctor's intention (Matter of Gregorec v Brenners Furniture Co., Inc., 68 AD3d 1301 [2009]; Matter of Loiacono v Sears Roebuck & Co., 230 AD2d 351 [1997]). A medical report merely indicating new or on-going treatment, even if it is after a lengthy period without treatment, is not a request to reopen (see e.g. Loiacono, 230 AD2d 351 [1997]).

In the instant case, the claimant's accident occurred on May 22, 2004, and the last payment of compensation was mailed to the claimant on June 23, 2005. Therefore, the critical dates for WCL § 25-a purposes are May 22, 2011 (seven years post-accident), and June 23, 2008 (three years post last payment).

On May 4, 2011, the claimant's treating physician, Dr. Ross, filed a form C-27 indicating the claimant's medical condition had changed and requesting the case be reopened. The claimant also requested the case be reopened by filing a form RFA-1 and supporting letter on May 12, 2011. Both of these requests to reopen were submitted (and in response the case was reopened) within seven years from the date of accident.

However, the decision filed on August 8, 2011, resolved all outstanding issues and constituted a true closing.

Thereafter, the case was reopened on November 8, 2011, and a hearing was held on December 2, 2011, where the SIE requested WCL § 25-a relief.

Therefore, the Full Board finds that inasmuch as when the case was reopened on November 8, 2011, the requisite time periods had passed and the case was truly closed, the WCLJ correctly found that WCL § 25-a is applicable and that liability shifts to the Special Funds.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on February 21, 2012, is AFFIRMED. No further action is planned by the Board at this time.