IN RE: the Claim of Dominic IANNACI (2009)

Appeal from a decision of the Workers' Compensation Board, filed April 7, 2008, which, among other things, ruled that liability shifted to the Special Fund for Reopened Cases pursuant to Workers' Compensation Law § 25-a.

Claimant sustained a work-related injury in 1992 and received workers' compensation benefits until 2001, when his case was closed.   In 2007, the employer's workers' compensation carrier requested that the claim be reopened to determine whether Workers' Compensation Law § 25-a was applicable.   Accompanying the request was an incomplete Workers' Compensation Law § 25-a affidavit executed by claimant.¹  At an August 2007 hearing, the Special Fund for Reopened Cases asserted that further development of the record, either through a completed affidavit or claimant's own testimony, was necessary before a determination as to the applicability of Workers' Compensation Law § 25-a could be made.   A Workers' Compensation Law Judge disagreed and, finding that the relevant time periods had been met under Workers' Compensation Law § 25-a, shifted liability to the Special Fund.

Prior to the Workers' Compensation Board's consideration of the Special Fund's appeal, claimant submitted a complete Workers' Compensation Law § 25-a affidavit in which he indicated that he had been given lighter duties as a result of his injury, but that his wages did not change.   The Board affirmed the Workers' Compensation Law Judge's decision declining further development of the record and transferring liability to the Special Fund pursuant to Workers' Compensation Law § 25-a, finding that “there is absolutely no evidence to support [the Special Fund's] contention” that claimant may have received an advance payment of compensation.   Upon this appeal by the Special Fund, we now reverse.

 Pursuant to Workers' Compensation Law § 25-a, liability shifts from the employer to the Special Fund where an application to reopen a closed case is made more than seven years from the date of injury and three years following the last payment of compensation (see Matter of Lauritano v. Consolidated Edison Co. of N.Y., Inc., 59 A.D.3d 757, 758, 872 N.Y.S.2d 252 [2009];  Matter of Faison v. City of N.Y. Dept. of Human Resources, 24 A.D.3d 829, 830, 805 N.Y.S.2d 167 [2005], lv. dismissed 7 N.Y.3d 783, 820 N.Y.S.2d 544, 853 N.E.2d 1112 [2006] ).  “Advance payments that are made voluntarily, in recognition of an employer's liability, are payments of compensation” for purposes of determining the applicability of Workers' Compensation Law § 25-a (Matter of Fuentes v. New York City Hous. Auth., 53 A.D.3d 873, 874, 861 N.Y.S.2d 861 [2008] [citation omitted];  see Matter of Faison v. City of N.Y. Dept. of Human Resources, 24 A.D.3d at 830, 805 N.Y.S.2d 167).   Thus, evidence that a claimant received full wages despite performing limited or light duties may result in a finding that advance payments have been made (see Matter of Reeves v. Pfizer & Co., 22 N.Y.2d 950, 952, 295 N.Y.S.2d 165, 242 N.E.2d 396 [1968];  Matter of Foglia v. New York City Hous. Auth., 132 A.D.2d 762, 763, 517 N.Y.S.2d 112 [1987];  Matter of Tremblay v. Warren County Westmount Sanatorium, 24 A.D.2d 658, 658, 261 N.Y.S.2d 205 [1965] ).   Although the Board's determination as to whether Workers' Compensation Law § 25-a is applicable in a given case must be upheld if supported by substantial evidence (see Matter of Lauritano v. Consolidated Edison Co. of N.Y., Inc., 59 A.D.3d at 758, 872 N.Y.S.2d 252;  see also Matter of Foglia v. New York City Hous. Auth., 132 A.D.2d at 763, 517 N.Y.S.2d 112), it cannot be sustained “when it is clearly based on incorrect facts or an inaccurate reading of the record” (Matter of Evans v. Jewish Home & Hosp., 1 A.D.3d 736, 738, 766 N.Y.S.2d 648 [2003], lv. dismissed 2 N.Y.3d 823, 782 N.Y.S.2d 240, 815 N.E.2d 1105 [2004];  see Matter of Hayes v. Nassau County Police Dept., 59 A.D.3d 831, 832, 873 N.Y.S.2d 766 [2009];  Matter of Nickel v. Kings Park Psychiatric Ctr., 52 A.D.3d 1130, 1131, 860 N.Y.S.2d 678 [2008] ).

 Here, the Board's determination that Workers' Compensation Law § 25-a was applicable was based upon an erroneous finding that there was “no evidence” that claimant received an advance payment of compensation within three years of the date of the application to reopen his claim.   Claimant's completed affidavit-which the Board expressly considered upon its review-revealed that he received the same wages for lighter work, which could constitute an advance payment of compensation relieving the Special Fund from liability (see Matter of Reeves v. Pfizer & Co., 22 N.Y.2d at 952, 295 N.Y.S.2d 165, 242 N.E.2d 396;  Matter of Foglia v. New York City Hous. Auth., 132 A.D.2d at 763, 517 N.Y.S.2d 112;  Matter of Tremblay v. Warren County Westmount Sanatorium, 24 A.D.2d at 658, 261 N.Y.S.2d 205;  Matter of Golomb v. City of New York, 8 A.D.2d 874, 875, 186 N.Y.S.2d 893 [1959] ).   Given this evidence, it was error for the Board to deny further development of the record on the issue of advance payments of compensation.  “ ‘The test is whether the employer paid for something [it] did not get in the way of service’ ” (Matter of Radcliffe v. County of Nassau, 33 A.D.2d 938, 940, 306 N.Y.S.2d 373 [1970], quoting Matter of Baker v. Standard Rolling Mills, Inc., 284 App.Div. 433, 436, 131 N.Y.S.2d 739 [1954] ) and, in the absence of any proof regarding the nature of claimant's light duty work, the Board could not assess whether an advance payment was made for the purposes of determining the applicability of Workers' Compensation Law § 25-a.   Accordingly, the Board's decision is not supported by substantial evidence and the matter must be remitted for further development of the record on this issue (see Matter of Nickel v. Kings Park Psychiatric Ctr., 52 A.D.3d at 1131, 860 N.Y.S.2d 678).

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

FOOTNOTES

1.   The affidavit sought information relevant to claimant's work history subsequent to the closing of his case, including whether he lost time or had been given lighter duties during the three-year period preceding the application to reopen.

PETERS, J.

CARDONA, P.J., KAVANAGH, STEIN and McCARTHY, JJ., concur.