Opinion
January 13, 1943.
Appeal from State Industrial Board.
Present — Hill, P.J., Crapser, Bliss, Heffernan and Schenck, JJ.
The appellants' sole contention is that the State Industrial Board had no jurisdiction over the case because the claim had been barred by the seven-year lapse of time specified by section 123. The claimant was employed as a receiving clerk by the employer. While at work he felt a sharp pain in his groin while lifting a heavy bundle. The employer provided medical attention and the claimant's injury was diagnosed as a bilateral incipient hernia. The claimant sought compensation and the carrier controverted on the question of accident. Claimant testified at a hearing held on May 19, 1932. The referee disallowed the claim on the ground that the claimant had not established an accident. No appeal was taken to the disallowance. On April 15, 1941, the claimant applied for a review, pointing out that ever since the disallowance he had been supplied with trusses by the insurance carrier and asking that the carrier be ordered to continue supplying the trusses. Pursuant to claimant's application a hearing was held on July 9th and the Board member ruled that the claimant sustained an accident and the case did not come within the purview of section 25-a because the carrier had supplied trusses from the time of the accident to within a period of six months prior to the application. He rescinded and reversed the disallowance and restored the case to a referee's calendar to consider an operation for the claimant and about his receiving trusses. On December 31, 1941, the prescribed hearing was held. The question was raised that the claim was barred by section 123 because it had been dismissed more than seven years before. The referee, who heard the testimony, found that the carrier had furnished a truss eight months before and it was admitted that claimant had been supplied with trusses whenever he needed them and that a truss had been furnished within the preceding three years. The carrier applied for a review of the referee's decision that claimant be supplied with a truss. It was decided that the carrier was estopped from raising the bar of section 123 because it had furnished trusses and had led the claimant to believe that trusses would be provided whenever needed and that the case was properly reopened under all the facts in the case. Claimant was not represented and was induced to allow the seven years to lapse because he was receiving trusses. The claimant proceeded for years on the assumption trusses would be provided and it was only after the carrier had refused to resupply him with a replacement truss that the claimant requested a reopening. The furnishing of the truss is a payment of compensation within the meaning of the Workmen's Compensation Law. ( Matter of Patti v. Knickerbocker Fireproofing Co., 280 N.Y. 609; Matter of Gabrielli v. City of New York, 258 App. Div. 1015, leave to appeal denied, 282 N.Y. 809.) Decision reopening the case and order directing the carrier to provide a truss affirmed with costs to the State Industrial Board.