Justice Leslie Stein
Riley received an award for a 1990 knee injury. His claim was reopened in 2008, effective August 2006. Liability shifted to the Special Fund for Reopened Cases. In 2009 a law judge authorized knee replacement. Riley sought further benefits after surgery in 2011. On Nov. 30, 2011, the Workers’ Compensation Board agreed with the Special Fund that Riley’s claim "truly closed" in April 2009, and that reopening was barred by Workers’ Compensation Law §123. Third Department reversed, noting that §123′s bar applies only if the claimant’s case was truly closed, a fact issue depending on whether further proceedings were contemplated. The record arguably contradicted the board’s conclusion that Riley’s case "truly closed" on April 6, 2009, and that no further action was then contemplated. The April 2009 decision relied on by the board provided no information whether further action was contemplated once the outcome of Riley’s surgery was determined. Also, two months prior thereto a law judge authorized Riley’s knee surgery and his case’s continuation. Considering the nature of the surgery requested, the board’s conclusion that no further proceedings were contemplated in April 2009 when surgery was authorized was devoid of record support.
