Opinion
December 21, 1970
Appeal from a decision of the Workmen's Compensation Board, filed March 15, 1968. On or about September 20, 1953, the claimant, then a minor 16 years of age, sustained an accidental injury to his back while working as a trucker for the appellant. It is undisputed that he was employed without an employment certificate in violation of section 132 Lab. of the Labor Law. After an award was made to claimant, there was a determination by the Referee that at the time he was hired, he misrepresented his age to be 18, although actually he was only 16 years of age. The Referee then denied double compensation under section 14-a Work. Comp. of the Workmen's Compensation Law, holding that there was no illegal employment of the claimant. The case was continued with compensation payments to continue at the rate of $32 per week. Thereafter, compensation benefits were allowed to the claimant for partial disability from January 29, 1954 to March 7, 1967. In April, 1966, the earlier 1954 determination of the Referee finding no illegal employment of the claimant and denying double compensation against appellant was brought to the attention of the board by claimant's counsel. Although on referral, a Referee refused to disturb the 1954 finding, on review, the board found that claimant had been illegally employed and that he was entitled to double compensation. Appellant contends that claimant's right to reopen the issue of illegal employment is barred by section 123 Work. Comp. of the Workmen's Compensation Law, and that claimant should be estopped from claiming an award under section 14-a of the Workmen's Compensation Law. We do not agree. The obligation imposed by section 14-a to pay double compensation in case of injury to a worker employed in violation of section 132 Lab. of the Labor Law "is absolute, where, as here, no employment certificate has been obtained by the employer" ( Matter of Sackolwitz v. Hamburg Co., 295 N.Y. 264, 270). Neither deceit by the employee in gaining employment nor the employer's good faith, operate to relieve the employer from his statutory obligation or the penalty for violation thereof ( Matter of Landrum v. Empire Carriers Corp., 2 A.D.2d 912). Likewise the board's review of the Referee's prior determination was clearly authorized by section 123 Work. Comp. of the Workmen's Compensation Law which vests the board with "continuing" jurisdiction. The board is authorized to "make such modification or change with respect to former findings, awards, decisions or orders relating thereto, as in its opinion may be just". Additionally, subdivision (b) of section 150 empowers the board to modify or rescind a Referee's determination, either on application or on its own motion. Since claimant's case was never closed, the prohibition against reopening is inapplicable. Moreover, the limitations imposed by section 123 apply only where a claim has been disallowed or disposed of without an award by the board. Decision affirmed, with costs to the Workmen's Compensation Board. Herlihy, P.J., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur.