Claim of Manning v. Niagara Mohawk Power Corp. , 501 N.Y.S.2d 218 ( 1986 )

— Kane, J. P.

Appeal from a decision of the Workers’ Compensation Board, filed April 11, 1985.

At issue on this appeal is whether it is the responsibility of the insurance carrier or the Special Fund for Reopened Cases to reimburse claimant for medical expenses incurred in excess of his net recovery in a third-party action following a compensable injury. The amounts are substantial as a result of claimant’s continuing total disability since his injury in 1962.

The record demonstrates that subsequent to the closing of this case on April 24, 1968 and after disposition of the recovery in the third-party action, the case was reopened upon claimant’s application on May 1, 1979 to consider questions concerning claimant’s entitlement to deficiency compensation. Such compensation includes medical expenses as well as weekly benefits (see, Matter of Dimaggio v International Chimney Corp., 285 App Div 226). In view of the specific statutory proscription of awards of deficiency compensation against the Special Fund (Workers’ Compensation Law § 25-a [8]), the difference between the amount actually received by claimant in the third-party action and the benefits he is entitled to under the Workers’ Compensation Law continue to remain the responsibility of the carrier (see, Matter of Schreckinger v York Distribs., 9 AD2d 333).

Decision affirmed, with costs to the Special Fund for Reopened Cases. Kane, J. P., Main, Yesawich, Jr., Levine and Harvey, JJ., concur.