Opinion
November 8, 1963
Appeal by the claimant from a decision of the Workmen's Compensation Board denying an application to reopen his case. Claimant alleges he suffered a compensable injury to his right thumb on August 25, 1954 when he was attacked by a fellow employee on the employer's premises. At a hearing held October 15, 1957, at which claimant and his attorney were not present, medical testimony as to claimant's condition was adduced which was generally unfavorable to claimant's position. Thereafter the Referee denied compensation on the grounds that claimant's condition with respect to his thumb was not causally related to the accident of August 25, 1954 and closed the case. No attempt to review this determination was then made. Almost five years later claimant sought to reopen the case, presenting a Form C-27 by a Dr. Greenberg who had testified at the October, 1957 hearing. The reopening of a case such as the present one is within the discretion of the board and is not reviewable unless the denial thereof is arbitrary and capricious (see, e.g., Matter of Lu Core v. Hooker Electrochemical Co., 6 A.D.2d 624). Dr. Greenberg's statement contained only a conclusion that he still felt the injury should have been found compensable originally and an opinion that the condition had worsened with the passage of time, which, of course, has no bearing on the issue of causal relationship. On the basis of the record before us the board's determination should be sustained. Decision affirmed, without costs. Bergan, P.J., Gibson, Reynolds and Taylor, JJ., concur.