Summary
In Matter of Wohlsen v. New Rochelle Coal Lbr. Co. (14 A.D.2d 661) this court ruled that contemplation of future payments does not change the finality of a Referee's closing.
Summary of this case from Matter of Leonescu v. Star Liquor DealersOpinion
August 31, 1961
Appeal by employer and its insurance carrier from a decision of the Workmen's Compensation Board which held them liable for certain medical and hospital expenses incurred by claimant for treatment rendered him in 1958 and discharged the Special Fund for Reopened Cases under section 25-a Work. Comp. of the Workmen's Compensation Law from responsibility for their payment. On May 24, 1934 claimant sustained an industrial accident in which he suffered injuries to his left leg. Compensation was paid for various periods of disability, the last payment having been made on July 14, 1941. On December 27, 1946 the Referee closed the case in these words: "Since the claimant is working and earning his money despite the existence of that disability, although no one questions the fact of the disability, the claimant is therefore declared permanently, partially disabled and the case is closed until such time as the claimant becomes entitled to any payments of compensation. This closing of the case is without prejudice to the rights of the claimant to receive treatment when, as and if the same becomes necessary and without prejudice to his rights to receive such orthopedic devices as may become necessary from time to time." The formal decision of the board dated February 5, 1957 read: "Closed without prejudice; until such time as the claimant becomes entitled to any payments of compensation. Claimant is declared permanently partially disabled and is entitled to receive treatment when and if the same becomes necessary." The reservation of claimant's rights announced by the Referee and formalized by the board's decision was simply a reiteration of duties imposed by statute on the carrier or the Special Fund dependent only upon the passage of time. (Workmen's Compensation Law, § 13; Matter of Casey v. Hinkle Iron Works, 299 N.Y. 382; Matter of Youngelman v. City of New York, 10 A.D.2d 173.) In June, 1950 claimant was reimbursed by the carrier in the sum of $20 for the repair of a knee brace previously furnished him. Upon his application dated June 5, 1958 the board reopened the case and restored it to the calendar of the Referee who, after a hearing discharged the Special Fund and imposed the responsibility on the employer. The board affirmed stating: "The Board finds that at the time of the closing of the claim, further proceedings were contemplated and the Referee['s] action on Dec. 27, 1946 did not constitute an actual closing of the case but was merely a direction that it be withheld from the calendar until such time as conditions warranted a rehearing. Under these circumstances, the Referee was correct in finding that liability herein is properly charged to the carrier. The Board also finds that if the case was deemed closed on Dec. 27, 1946, the payment of $20.00 in June 1950 would be a payment within eight years of the date of application for reopening and therefore the claim would not be barred by the time limitations of Sec. 123." On this record the reasoning of the board in support of the first finding is unwarranted. It reopened a closed case at the instance of claimant on conventional application forms provided him after he had sought, unsuccessfully, reimbursement from the carrier for the cost of treating his knee and leg. ( Matter of Becker v. Marcy State Hosp., 264 App. Div. 643; Matter of Standish v. Walter B. Cooke, Inc., 9 A.D.2d 817; Workmen's Compensation Law, § 25-a.) More than seven years having elapsed from the date of the injury and more than three years since the last payment of compensation was made, the responsibility for claimant's additional medical and hospital expenses was erroneously imposed on the employer. (Workmen's Compensation Law, § 25-a; Matter of Casey v. Hinkle Iron Works, supra; Matter of Youngelman v. City of New York, supra.) The alternative theory of liability upon which the board relied is also without merit. The reimbursement of claimant by the carrier for the repair of an orthopedic knee brace in 1950 cannot be regarded as the last payment of compensation and did not operate to toll the eight-year Statute of Limitations within which an application could be made to reopen the claim. (Workmen's Compensation Law, §§ 13, 123; Matter of Youngelman v. City of New York, supra.) The board on June 24, 1958 wrote claimant as follows: "Under the provisions of [X] Sec. 25-a of the Workmen's Compensation Law * * * conditional authorization is herewith extended to you to secure treatment for your left leg condition through the services of a duly qualified physician licensed to treat workmen's compensation cases. These authorizations are conditioned upon a finding by the Board that the condition requiring treatment is a result of the above captioned matter and that same is a responsibility of the Special Fund." Authorization by the chairman of the board for the payment of the claim for medical treatment from the Special Fund — permitted irrespective of time limitations — seems never to have been granted finally and the decision of the board, in effect, abrogated the conditional grant. (Workmen's Compensation Law, § 25-a, subd. 2; Matter of Youngelman v. City of New York, supra.) Decision reversed and the claim remitted for further consideration by the chairman of the board and by the board, without costs. Bergan, P.J., Gibson, Reynolds and Taylor, JJ., concur.