Opinion
January 17, 1962
Appeal by the employer and its carrier from a decision of the Workmen's Compensation Board discharging the Special Fund for Reopened Cases under section 25-a. Claimant, a laboratory technician, developed a bilateral pulmonary tuberculosis which the board found to be an occupational disease and fixed October 10, 1949 as the date of disablement. Awards of compensation were paid her until September 29, 1954 and on March 29, 1955 the case was closed upon a finding by the Referee that "[t]here is no further disability." The carrier made an application to reopen the case on February 12, 1959 to determine the liability for an outstanding medical bill. The board restored the case to the Referee's calendar for further consideration "of disability, treatment, outstanding medical bills and liability therefor." In April, 1959 claimant formally applied to reopen her claim. At a hearing held on July 7, 1959 the Referee, relying on Matter of Norton v. New York State Dept. of Public Works ( 1 N.Y.2d 844), discharged the Special Fund for Reopened Cases from liability and directed the carrier to pay a recent medical bill in the amount of $27. After the closing of the case Doctor Wally, her attending physician, filed 18 reports of physical examinations of claimant made during the years 1955, 1956, 1957 and 1958. The board found that his report dated May 6, 1955 and those which followed constituted "an application for reopening within three years of the date of the last payment of compensation". Respondent did not urge before the board and does not contend now that the medical reports of Doctor Wally showed any change in claimant's physical condition. The facts in this case are governed by Matter of Erwin v. Minneapolis Honeywell Regulator Co. ( 9 A.D.2d 989) and not by Norton ( supra) where a change of physical condition was found. (See, also, Matter of McKenna v. Elm Tremont Coal Co., 9 A.D.2d 458; Matter of Tripoli v. Crucible Steel Co., 12 A.D.2d 425; Workmen's Compensation Law, § 25-a; § 13, subd. [a].) We find no merit to respondent's further contention that the application to reopen was first made by the carrier. The order of the board recites that the claim was restored also "in claimant's behalf". ( Matter of Erwin v. Minneapolis Honeywell Regulator Co., supra; Matter of Norton v. New York State Dept. of Public Works, supra.) In any event this question was not raised before the board and we are precluded from considering it here. ( Matter of Braune v. Haas, 13 A.D.2d 875.) Decision of the Workmen's Compensation Board reversed and the matter remitted for further proceedings not inconsistent herewith, with costs to appellants against the Special Fund for Reopened Cases under section 25-a. Bergan, P.J., Coon, Herlihy, Reynolds and Taylor, JJ., concur.