IN RE: Grace KELLY (2018)

MEMORANDUM AND ORDER

In 2006, claimant established a claim for an occupational disease involving both of her shoulders and her right elbow and, subsequently, was awarded workers' compensation benefits based upon a 15% schedule loss of use of her right arm.  The State Insurance Fund (hereinafter SIF) made the last scheduled workers' compensation payment in October 2008.  In 2013, the claim was amended to include an injury to claimant's neck as reported in 2010 medical notes.

In December 2013, SIF sought to reopen the case and transfer liability to the Special Fund for Reopened Cases pursuant to Workers' Compensation Law § 25–a.  By decision filed July 11, 2014, a Workers' Compensation Law Judge (Cordovani, J.) found that Workers' Compensation Law § 25–a was inapplicable “at this time.” ¹  In 2016, SIF again sought to transfer liability to the Special Fund. By decision filed January 19, 2017, a different Workers' Compensation Law Judge found that Workers' Compensation Law § 25–a was “not applicable as previously found by Judge Cordovani.”  SIF sought review of that decision by the Workers' Compensation Board because the decision did not expressly state that Workers' Compensation Law § 25–a was not applicable “at this time.”  The Board affirmed the January 19, 2017 decision and, pursuant to Workers' Compensation Law § 114–a(3), assessed both SIF and its counsel, Walsh and Hacker, with separate $500 penalties on the basis that the application for review was filed without reasonable grounds.  Walsh and Hacker appeals, challenging the penalty imposed against it.

Inasmuch as the application for review was filed seeking administrative clarification/correction, we do not find that substantial evidence supports the Board's finding “that the application for review was filed by [SIF] without reasonable grounds” so as to warrant an assessment of penalties against Walsh and Hacker pursuant to Workers' Compensation Law § 114–a(3)(ii) (see generally Matter of Logan v. Westchester Med. Ctr., 117 A.D.3d 1311, 1312, 986 N.Y.S.2d 652 [2014]; compare Matter of Bailey v. Achieve Rehab & Nursing, 119 A.D.3d 1255, 1255–1256, 991 N.Y.S.2d 164 [2014] ).

ORDERED that the decision is modified, without costs, by reversing so much thereof as assessed a penalty against Walsh and Hacker, and, as so modified, affirmed.

FOOTNOTES

1.   During this time, the Workers' Compensation Board issued Board Subject No. 046–851 that held in abeyance all applications, including the one herein, to transfer liability to the Special Fund in accordance with Workers' Compensation Law § 25–a pending an appeal in American Economy Ins. Co. v. State of New York, 30 N.Y.3d 136, 65 N.Y.S.3d 94, 87 N.E.3d 126 (2017), cert denied ––– U.S. ––––, 138 S. Ct. 2601, 201 L.Ed.2d 1003 (2018), which challenged the validity and constitutionality of the 2013 amendment to Workers' Compensation Law § 25–a closing the Special Fund to new applications after January 1, 2014 (see Employer: Coca Cola, 2018 WL 1748515, *3, 2018 N.Y. Wrk Comp LEXIS 2032, *8 [WCB Nos. 0031 4101, 09944153, Mar. 6, 2018] ).

Pritzker, J.

McCarthy, J.P., Devine, Mulvey and Rumsey, JJ., concur.