Opinion
February 20, 1962
Present — Bergan, P.J., Coon, Herlihy, Reynolds and Taylor, JJ.
Appeal by employer Tilo Roofing Co., Inc., Glasfloss Division, and its carrier from a decision of the Workmen's Compensation Board holding that a medical report filed within seven years of a prior accident constituted an application to reopen a closed case thus relieving the Special Fund for Reopened Cases from liability (Workmen's Compensation Law, § 25-a). On December 12, 1950 claimant, while employed by appellant employer, sustained an injury to his back for which he received compensation until September 28, 1954. On November 8, 1954 the case was closed. In November of 1957 claimant suffered further back trouble for which a new claim was filed against the Pittsburgh Plate Glass Company, a self-insured employer. In connection with this new claim a doctor's report was filed in late November, 1957 which in addition to giving the history of the 1957 incident indicated that it was probably related to the 1950 accident. This report, although filed within the seven-year period required by section 25-a was placed in the file for the 1957 claim rather than the file for the 1950 claim. In December of 1957 Pittsburgh Plate Glass filed notice that it was contesting the 1957 claim on the basis that the alleged injury was attributable to the 1950 accident, and in May of 1958, after the seven-year period had elapsed, Pittsburgh Plate Glass requested a reopening of the board file on the 1950 claim. In June of 1958 the 1950 case was reopened and restored to the calendar, and in October of 1958 the appellant carrier was discharged from liability on the 1950 claim and the case was charged to the Special Fund. At a hearing in December, 1958 the 1957 claim was disallowed and an award made on the 1950 claim against the Special Fund. The board in July of 1959 modified the Referee's decision by holding appellant carrier liable and relieving the Special Fund from liability. The board reached this determination by finding that the doctor's report served as an application to reopen the case and that it was filed within the seven-year period. The board also found that the report evidenced the requisite physical change in the condition of the claimant. Appellants assert that the record does not support the finding that the case was reopened on the basis of the doctor's report. In support of their position they point out that the doctor's report was submitted in connection with the 1957 rather than the 1950 claim and that it was filed in the folder for that claim. They also contend that the fact that the board did nothing in connection with the 1950 claim until the Pittsburgh Plate Glass Company requested a reopening of the claim, indicates the case was reopened in response to this request, rather than on the basis of the doctor's report. We cannot agree. It is obvious from what has transpired that claimant in November, 1957 should have moved to reopen the old claim instead of filing a new claim. We do not feel that claimant's mistake in his choice of action vitiates the effect of the report as an application to reopen the 1950 claim especially since the board, which could not have known that the report in the 1957 folder had any bearing on the 1950 claim, took prompt action to reopen the case "on the basis of the report" when the effect of the report on the 1950 claim was called to its attention. Similarly the board was justified in finding that the report in question contained the requisite evidence of a change in condition to serve as an application to reopen the claim ( Matter of Norton v. New York State Dept. of Public Works, 1 N.Y.2d 844; Matter of Chase v. Buffalo Aeronautical Corp., 12 A.D.2d 849). Decision and award unanimously affirmed, with costs.