Claim of McNamara v. New Process Gear Division

43 A.D.2d 603, 348 N.Y.S.2d 601, 1973 N.Y. App. Div. LEXIS 3244

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 1, 1973
• Status: Published

Opinion

Appeal by the self-insured employer (1) from a decision of the Workmen's Compensation Board, filed March 22, 1971, (2) from a decision of the Workmen’s Compensation Board, filed July 26, 1971, which denied an application by the employer to reopen the claim on the ground of newly discovered evidence, and (3) from a decision of the Workmen’s Compensation Board, filed December 9, 1971, which denied a second application by the employer to reopen the claim on the ground of newly discovered evidence. In its decision-of March 22, 1971, the board found that the claimant was disabled as a result of dermatitis as an occupational disease resulting from the conditions of his employment. Following the decision of the board, the appellant moved to reopen the claim on the ground of newly discovered evidence and its applications were denied by the decisions of July 26, 1971 and December 9, 1971 upon the ground that the alleged new evidence was not new and was merely cumulative. The record contains ample medical testimony as to the issue of whether or not the dermatitis was causally related to the employment and that the disability related to the exposure during the employment. Insofar as the alleged new evidence might establish that the claimant had given misinformation as to prior outbreaks of the dermatitis, it must be noted that the record does not contain any reasonable excuse for the failure of the carrier to have secured such information prior to the final decision of the board on the merits. Upon the present record it does not appear that the board abused its discretion in refusing to reopen the claim for the reception of more evidence on the merits. (See Matter of Dudley v. Brown, Harris & Stevens, 35 A D 2d 1040; Matter of Wagner v. Emile & Robert Beauty Salon, 27 A D 2d 608.) Decisions affirmed, with costs to the Workmen’s Compensation Board. Herlihy, P. J., Staley, Jr., Cooke, Main and Reynolds, JJ., concur.