Opinion
December 15, 1983
Appeal from a decision of the Workers' Compensation Board, filed August 9, 1982. Claimant sustained an injury to his back on February 8, 1973. At that time he gave a history of prior low back pain and a laminectomy. An award was made to claimant. The carrier raised and litigated the question of the degree of disability causally related to the accident of February 8, 1973. By decision of January 15, 1981, the board held that claimant's disability "is due solely to the accident of February 8, 1973 and should not be apportioned". The carrier did not appeal the board's decision but rather sought to litigate the application of subdivision 8 of section 15 of the Workers' Compensation Law. By decision dated August 9, 1982, the board relieved the Special Funds Conservation Committee of any responsibility. It is from this decision that the carrier now appeals. The carrier urges reversal based on the Special Funds' signed concession of liability at a pretrial conference held on April 3, 1975. The carrier argues that it is presented with a classic "catch-22" situation. While the result may appear somewhat incongruous, the board's decision of January 15, 1981 that the accident in question was the sole cause of claimant's disability was not appealed and became final ( Matter of Board of Coop. Educational Servs. [ Boces Teachers Assn.], 67 A.D.2d 1052, mot for lv to app den 47 N.Y.2d 706). Consequently, the appealed decision is supported by substantial evidence. Decision affirmed, with costs to the Special Disability Fund. Mahoney, P.J., Sweeney, Kane, Mikoll and Levine, JJ., concur.