Opinion
August 31, 1961
Appeal by an employer and its insurance carrier, The Home Indemnity Company, from a decision of the Workmen's Compensation Board dated January 5, 1959 denying an application to reopen three previously closed cases for the purpose of determining whether or not the award of compensation in the instant case should be apportioned among the pertinent carriers. In 1937 claimant, employed as a carpenter, suffered accidental injuries to his back causing a temporary total disability. Compensation was awarded and the case was closed. Working in the same capacity for another employer in 1941, he sustained a second low back injury. This case was closed by the payment of a lump sum settlement upon a finding by the board based on a report of an impartial specialist, to whom the 1937 file had been referred, that the disability "is clearly the result of and flowing from [the] second accident solely." Similarly engaged by a third employer, claimant in 1945 suffered a further industrial accident in which he wrenched his back. The first two cases arising from this series of industrial accidents were reopened by the board on the question whether they had contributed to the 1945 disability. On October 31, 1947 all three were closed — the last apparently without an award of compensation — since the allocated lump sum settlement which derived from the accident of 1945 had not been consumed. On January 16, 1957 while employed by appellant, claimant in the course of his employment fell on a stairway and again injured his lower back. Hearings, eight in number, began on April 22, 1957 and ended on October 7, 1958. At the outset the carrier made clear its contention that the claimant's last disability was, in part, attributable to his prior accidents. Awards were made without prejudice to their subsequent apportionment. Difficulties were encountered by the carrier in ascertaining the names of the former employers and their carriers and in locating the records pertinent to the prior cases. At the seventh hearing Doctor Stein, claimant's physician who had also attended him for the injuries sustained in the 1937 accident, testified on direct examination as follows: "Q. Doctor, as of the present date is there any residuals, in your opinion, remaining from the 1937 accident? A. Yes, I believe so. The X ray shows diminution of the intervertebral space between the bodies of the fourth and fifth lumbar and the fifth lumbar and the first sacral which undoubtedly are residuals of the previous injury." Although the record indicates his answer not to have been completed, it is manifest that his intent was to reiterate his opinion on cross-examination. Immediately after this testimony was received, the following colloquy took place: "The Referee: * * * Inasmuch as the testimony of this doctor indicates that a triable issue was raised with respect to the antecedent pathology, then it is my advice * * * that * * * the matter be laid over with a direction to you [carrier's counsel] to have the Board bring in the other carriers as expeditiously as possible * * * Mr. Minore [carrier's counsel]: In order to support our application to the Board, I have one other doctor here. * * * The Referee: (Int'g) You already have the testimony of the claimant's own doctor. Why do you need your doctor? Mr. Minore: That is true but since he is here it will take two minutes and we may not have to bring him back again. The Referee: I think you have sufficient evidence here." Doctor Kapland who had examined claimant for the carrier on March 6, 1957 and had reported that "From the history obtained from the claimant, it appears that he has sustained an acute exacerbation of a chronic lumbar sprain" was the available doctor to whom carrier's attorney referred. At the eighth and last hearing counsel for the carrier advised of his readiness to apply for the reopening; the Referee noted the report of Doctor Stein to the effect that "the old injury was a predisposing factor" and continued the case for two months "to give carrier Home Indemnity an opportunity to apply for reopening of" the closed cases. On December 4, 1958 the board issued a memorandum decision denying the carrier's application in which it stated: "Upon review of the record and the testimony of Dr. Stein the Board believes that such testimony does not substantiate the carrier's contention that claimant's disability is due to any of the closed cases and the Board so finds." Formal notice of this decision followed on January 5, 1959. A notice of appeal was filed on January 24, 1959. Carrier ceased its compensation payments in April, 1959. Appellants contend that the board's action was arbitrary and capricious. Respondent's chief thesis is stated in its brief as follows: "The * * * summary of the proceedings from 1937 to date establishes that the Board, at various times, had reopened the claimant's earlier cases, had fully considered the evidence and testimony contained therein, and had arrived each time, at the conclusion that the particular disability existing after each of the various accidents, was due solely to that particular accident and was not a residuum of any previous accidental injury." As a barrier to carrier's application to reopen the prior cases, we think that this reasoning is fallacious. What the board found about the lack of the interrelationship of disabilities, industrial in origin, in cases involving other accidents and parties is not dispositive of the present carrier's contention, medically supported, that the present disability is traceable to one or more of them. ( Matter of Fichtner v. Bloomingdale Bros., 4 A.D.2d 897, affd. 4 N.Y.2d 914; Matter of Anderson v. Babcock Wilcox Co., 256 N.Y. 146. ) It is also argued by respondent that no appeal can lie from an application to reopen such as is here involved. This contention is without substance. ( Matter of McLaskey v. City of New York, 277 App. Div. 1068; Matter of Lawrence v. Meyer-Garry, 278 App. Div. 990; Matter of Barrow v. Loon Lake Hotel, 3 A.D.2d 783; Matter of Lu Core v. Hooker Electro-chemical Co., 6 A.D.2d 624.) In the light of the testimony of claimant's doctor and the report of Doctor Kapland which undoubtedly would have been supported and perhaps expanded by oral testimony, had he been permitted to testify — uncontroverted in this proceeding — the board's denial of claimant's application to reopen the prior cases must be regarded as arbitrary and in the interest of justice appellants should be given the opportunity to offer evidence in support of their contention that the awards should be apportioned. Decision reversed and the matter remitted to the Workmen's Compensation Board for further proceedings, without costs. Concededly, the appeal taken from the memorandum of decision, dated January 3, 1961 is moot. It is, therefore, dismissed, without costs. Bergan, P.J., Gibson, Reynolds and Taylor, JJ., concur.