IN RE: the Claim of Robert BATES (2007)

Appeals (1) from a decision of the Workers' Compensation Board, filed April 25, 2005, which ruled that Workers' Compensation Law § 25–a did not apply, and (2) from a decision of said Board, filed August 14, 2006, which denied the employer's request for reconsideration or full Board review.

Claimant was rendered a quadriplegic as a result of a 1970 work-related accident.  The Workers' Compensation Board classified him with a permanent total disability and awarded him weekly compensation and medical benefits.  In 2000, claimant's employer and its workers' compensation carrier (hereinafter collectively referred to as the carrier) filed an application to reopen claimant's case, alleging that claimant was no longer eligible to receive weekly benefits due to his earnings from a business he owned and worked for. Claimant then sought additional amounts toward the costs of his home healthcare services.  In March 2002, a Workers' Compensation Law Judge (hereinafter WCLJ) determined that the carrier was required to continue paying claimant compensation benefits at the previous rate and increased the weekly payment toward home healthcare services to $1,300.  To avoid impending appeals and further litigation, claimant and the carrier reached a settlement agreement pursuant to Workers' Compensation Law § 32, which was approved by the Board in April 2002.  The agreement provided, as relevant here, that the WCLJ's findings were rescinded, claimant's earnings disqualified him from receiving a benefit award as of August 20, 2000, the carrier was required to pay $1,300 per week for claimant's home healthcare expenses from 1999 forward, and the agreement was only subject to review or reopening to adjust the home healthcare requirements if an unexpected and significant change developed in the nature and extent of claimant's healthcare requirements.

In September 2003, the carrier applied for a finding pursuant to Workers' Compensation Law § 25–a that all liability for claimant's case should shift to the Special Fund for Reopened Cases.  The WCLJ found that Workers' Compensation Law § 25–a did not apply here.  Finding that claimant's case was not truly closed, the Board affirmed, and thereafter denied the carrier's request for reconsideration or full Board review.  The carrier appeals from both of the Board's decisions.

 “Workers' Compensation Law § 25–a shifts liability to the Special Fund when a case is closed and reopened ‘after a lapse of seven years from the date of injury and three years from the last payment of compensation’ ” (Matter of Granberry v. JCCA Edenwald, 33 A.D.3d 1102, 1103, 823 N.Y.S.2d 550 [2006], quoting Matter of Hantz v. Brightman Agency, 29 A.D.3d 1098, 1099, 816 N.Y.S.2d 199 [2006] ).  Although those time periods have been met here, Workers' Compensation Law § 25–a is only applicable if the case was truly closed (see Matter of Washburn v. Bob Hooey Constr. Co., 39 A.D.3d 956, 957, 833 N.Y.S.2d 696 [2007];  Matter of Granberry v. JCCA Edenwald, supra at 1103, 823 N.Y.S.2d 550).  Whether and when a case is truly closed is a factual question for the Board to determine, based mainly on whether further proceedings were contemplated at the time of the presumed closing, and that determination will not be reversed if supported by substantial evidence (see Matter of Granberry v. JCCA Edenwald, supra at 1103, 823 N.Y.S.2d 550;  Matter of Jones v. HSBC, 304 A.D.2d 864, 866, 757 N.Y.S.2d 368 [2003] ).

 Here, the Board's notice of approval of the Workers' Compensation Law § 32 agreement did not state that the case was closed, but that “[n]o further action is planned by the Board at this time,” a statement that signals that the case is currently inactive but “is not dispositive on the issue of closure” (Matter of Buffum v. Syracuse Univ., 12 A.D.3d 887, 888, 785 N.Y.S.2d 155 [2004];  see Matter of Granberry v. JCCA Edenwald, supra at 1103, 823 N.Y.S.2d 550).  The Board found that claimant's case was not closed, and Workers' Compensation Law § 25–a therefore could not be invoked, for two reasons.  First, claimant is classified with a permanent total disability which implies a continuing need for medical treatment and care.  Second, the Workers' Compensation Law § 32 agreement contains a provision that the Board found “contemplated further proceedings in the form of modification of home health care requirements.”

 Addressing the Board's first reason, a classification of a permanent total disability does not foreclose the possibility of the case being truly closed just because continued medical care is needed.  A case may be truly closed where symptomatic medical treatment is authorized, even if the claimant's condition may change or worsen in the future, which would result in a reopening of the case (see Matter of Casey v. Hinkle Iron Works, 299 N.Y. 382, 384–385, 87 N.E.2d 419 [1949];  Matter of Mackey v. Murray Roofing, 24 A.D.3d 1149, 1151, 807 N.Y.S.2d 434 [2005];  Matter of Jones v. HSBC, supra at 866, 757 N.Y.S.2d 368;  Matter of Andrus v. Purolator Prods., 301 A.D.2d 762, 763–764, 753 N.Y.S.2d 224 [2003];  Matter of McQueen v. New York State Div. of Parole, 245 A.D.2d 851, 666 N.Y.S.2d 317 [1997], lv. denied 92 N.Y.2d 802, 677 N.Y.S.2d 72, 699 N.E.2d 432 [1998] ).  The possibility always exists that an injured person's health could deteriorate.  Additionally, a workers' compensation carrier is responsible for paying for medical treatment regardless of whether the claimant is receiving compensation in the form of weekly wage benefits.  For purposes of determining true closure and calculating time periods for Workers' Compensation Law § 25–a purposes, the further proceedings contemplated at the time of “closure” should concern issues related to the payment of “compensation,” which does not include payments for medical treatment or care (see Workers' Compensation Law § 13[a];  Matter of Casey v. Hinkle Iron Works, supra at 385–386, 87 N.E.2d 419;  Matter of Jones v. HSBC, supra at 866, 757 N.Y.S.2d 368;  compare Matter of Granberry v. JCCA Edenwald, supra [case not truly closed where issue of lost wages for certain time periods unresolved], and Matter of Stanford v. Lewis County Opportunities, 33 A.D.3d 1098, 822 N.Y.S.2d 341 [2006] [case not truly closed where issue of concurrent employment unresolved], and Matter of Carubia v. Colt Indus., 12 A.D.3d 827, 783 N.Y.S.2d 891 [2004] [case not truly closed where issue of permanency not resolved], with Matter of Mackey v. Murray Roofing, supra [case closed where weekly benefits suspended due to incarceration, despite possible future request for reinstatement of benefits], and Matter of Jones v. HSBC, supra [matter closed where the claimant awarded schedule loss of use and all temporary rates made permanent, despite continuation of contemplated medical treatment regimen] ).  Thus, claimant's classification and need for continuing medical care do not support the Board's determination.

 Addressing the Board's second reason, the Workers' Compensation Law § 32 agreement limited Board action on the case to review or reopening for the purpose of making adjustments to reimbursements for claimant's future home healthcare requirements based upon a significant and unanticipated change.  This provision does not so much contemplate further proceedings, as the Board held, because it provides a contingency to allow reopening if future developments make adjustments to this narrow category of reimbursements necessary. Finally, while the Board considered the agreement as anticipating further proceedings, the language of the agreement refers to reopening, which can only occur if the case is closed.  This matter must be remitted to the Board because its determination that claimant's case was not truly closed is not supported by substantial evidence (see Matter of Andrus v. Purolator Prods., supra ).

Our decision on the merits renders the appeal from the request for reconsideration academic.  We have reviewed the parties' remaining arguments and find them to be without merit.

ORDERED that the decision filed April 25, 2005 is reversed, without costs, and matter remitted to the Workers' Compensation Board for further proceedings not inconsistent with this Court's decision.

ORDERED that the appeal from the decision filed August 14, 2006 is dismissed, without costs, as academic.

KANE, J.

MERCURE, J.P., SPAIN, CARPINELLO and MUGGLIN, JJ., concur.