Claim of Hirschhorn v. L & N Fruit & Produce, Inc.

43 A.D.2d 1007, 352 N.Y.S.2d 685, 1974 N.Y. App. Div. LEXIS 5616

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 28, 1974
• Status: Published

Opinions

Appeal from a decision of the Workmen’s Compensation Board, filed November 18, 1971, which determined that the carrier’s request for reimbursement was not timely filed and discharged Special Fund from liability pursuant to section 15 (subd. 8, par. [f]) of the Workmen’s Compensation Law. The sole issue upon this appeal is whether the record supports a finding of the board that there was not a true closing within the meaning of section 15 (subd. 8, par. [f]) of the Workmen’s Compensation Law. Claimant’s rights are not involved. Claimant suffered a compensable back injury on January 27, 1967. After several hearings were held, an award was made and the case closed by a notice of decision filed February 2,1968. On February 7,1968 claimant wrote the board inquiring as to why the ease was closed as he was still under treatment. The case was reopened and restored to the calendar on March 4, 1968, and again closed without prejudice on July 1, 1968, with an authorization for occasional observation. Again, on August 8, 1968 the case was reopened on an application to consider a claim for substitute hire. Further hearings were held and ultimately a decision was filed on December 24, 1970 with a finding of permanent partial disability. Prior thereto, and on July 23, 1970, the appellant carrier filed a form C-250 for reimbursement from Special Fund under section 15 (subd. 8). The board has affirmed a decision of the referee determining that there was no true closing of the ease and, therefore, appellant’s form for reimbursement was not timely filed. Special Fund was discharged. Primarily, appellant contends that the February 2, 1968 closing was a true and final closing. We are unable to agree with appellant’s argument that the standard for true closure under section 15 (snbd. 8, par. [f]) should be stricter than that under sections 123 and 25-a. The critical test in each instance is whether the case was, in fact, closed, a factual matter clearly within the province of the board to determine. (Matter of Scalesse v. Printing A&o. Gorp., 30 N T 2d 234.) It is apparent from a reading of the record that at the time the referee “closed” the case he was unaware that claimant was still receiving treatment. The board could properly infer that his action was based on a clear mistake and, in view thereof, rescind the error. (Matter of Leoneseu v. Star Liq. Dealers, 25 A D 2d 932, affd. 20 N T 2d 956.) There is substantial evidence to support the board’s decision. Decision affirmed, with costs to respondent, Special Disability Fund. Cooke, Sweeney, Kane and Main, JJ., concur; Greenblott, J. P., concurs in the result in the following memorandum.