Opinion
May 4, 1938.
Appeal from State Industrial Board.
The employer was engaged in the mining and ore business and claimant was employed by it as a blaster and trackman. On August 4, 1925, while engaged in his regular occupation he received injuries because of an explosion of dynamite as a result of which he suffered permanent disability. Compensation was paid to claimant for 100 per cent permanent loss of use of the left hand and 100 per cent permanent loss of vision of the right eye in accordance with an award of the State Industrial Board, dated May 9, 1928. The last payment of compensation for these injuries was made on July 31, 1933, which paid such compensation to September 6, 1933. During the early part of 1936 an application to reopen and to further consider the claim was made on the ground that the claimant was suffering a permanent total disability. Subsequently the case was reopened, further hearings held, and the award made from which the present appeal has been taken. On this appeal the carrier contends that the award should be made against the Special Fund pursuant to the provisions of section 25-a Work. Comp. of the Workmen's Compensation Law. The State Industrial Board held that because three years had not expired from the time of the last payment of compensation when an application for reopening of the case was made that the provisions of section 25-a are not applicable. In view of the fact that compensation was actually being paid claimant on April 24, 1933, the case was an open one on that date within the meaning of the Workmen's Compensation Law. The provisions of section 25-a are not applicable, and the award was properly made. Award affirmed, with costs to the State Industrial Board. Hill, P.J., Crapser, Bliss and Heffernan, JJ., concur; Rhodes, J., dissents on the ground that the award should be made against the Special Fund, as provided by section 25-a Work. Comp. of the Workmen's Compensation Law.