Matter of Alcott-Avery v Finger Lakes Regional Health

Matter of Matter of Alcott-Avery v Finger Lakes Regional Health 2012 NY Slip Op 08399 Decided on December 6, 2012 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: December 6, 2012
514945 In the Matter of the Claim of

[*1]HEIDI ALCOTT-AVERY, Respondent,

v

FINGER LAKES REGIONAL HEALTH et al., Respondents, and SPECIAL DISABILITY FUND, Appellant. WORKERS' COMPENSATION BOARD, Respondent.

Calendar Date: November 16, 2012
Before: Mercure, J.P., Spain, Malone Jr., Stein and McCarthy, JJ.


Steven Licht, Special Funds Conservation Committee,
Albany (Jill B. Singer of counsel), for appellant.
Hamberger & Weiss, Rochester (Joseph P.
DeCoursey of counsel), for Finger Lakes Regional Health and another,
respondents.

MEMORANDUM AND ORDER


Mercure, J.P.

Appeal from an amended decision of the Workers' Compensation Board, filed December 22, 2011, which ruled, among other things, that the employer's application for reimbursement from the Special Disability Fund was timely.

Claimant sustained a work-related injury to her neck and shoulder in April 2005. As relevant to this appeal, claimant and the self-insured employer entered into a stipulation on September 29, 2009, in conjunction with a hearing before a Workers' Compensation Law Judge (hereinafter WCLJ), that claimant suffered from a moderate to marked permanent partial disability. That stipulation was accepted by the WCLJ and incorporated into a written decision [*2]filed on October 5, 2009. Meanwhile, on October 2, 2009, the employer filed a C—250 form with the Workers' Compensation Board, seeking reimbursement from the Special Disability Fund pursuant to Workers' Compensation Law § 15 (8). Ultimately, the Board ruled that the filing of the C-250 form was timely and returned the case to the hearing calendar for a determination of the employer's Worker's Compensation Law § 15 (8) claim on the merits. The Fund appeals.

We affirm. Pursuant to Workers' Compensation Law § 15 (8) (f), an employer seeking contribution from the Fund in a case that has been reopened must file a claim in writing with the Board "no later than the determination of permanency upon such reopening." The question here is when the determination of permanency was made — whether it was upon the signing of the stipulation and its acceptance by the WCLJ at the hearing, as the Fund contends, or whether it was upon the issuance of the WCLJ's written decision, which the employer argues and the Board determined.

Pursuant to 12 NYCRR 300.5 (2), a stipulation entered into by parties in a workers' compensation case is "subject to the approval of a [WCLJ] and, if approved, shall be incorporated into the decision of the [WCLJ] and shall be binding upon the parties." Thus, here the Board found that the determination of permanency was not made until the written decision incorporating the stipulation was issued on October 5, 2009, which rendered timely the C-250 form filed by the employer on October 2, 2009. As we cannot say that the Board's interpretation of Workers' Compensation Law § 15 (8) (f) was irrational, we decline to disturb its decision (see Matter of Copak v Our Lady of Victory, 82 AD3d 1485, 1486 [2011]; Matter of Turdo v Dellicato Vineyards, 73 AD3d 143, 146-147 [2010]; Matter of Scally v Ravena Coeymans Selkirk Cent. School Dist., 31 AD3d 836, 837 [2006]).

Spain, Malone Jr., Stein and McCarthy, JJ., concur.

ORDERED that the amended decision is affirmed, without costs.