Claim of Neuman v. North River Garnet Co.

Appellate Division of the Supreme Court of New York

Claim of Neuman v. North River Garnet Co.

254 A.D. 793, 4 N.Y.S.2d 204, 1938 N.Y. App. Div. LEXIS 7633

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 4, 1938

StatusPublished

This text of 254 A.D. 793 (Claim of Neuman v. North River Garnet Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Claim of Neuman v. North River Garnet Co., 254 A.D. 793, 4 N.Y.S.2d 204, 1938 N.Y. App. Div. LEXIS 7633 (N.Y. Ct. App. 1938).

Pincite

Opinion

'The State Insurance Fund has appealed from an award made by the State Industrial Board in favor of claimant for permanent total disability. The employer was engaged in the mining and ore business and claimant was employed by it as a blaster and trackman. On August 4, 1925, while engaged in his regular occupation he received injuries because of an explosion of dynamite as a result of which he suffered permanent disability. Compensation was paid to claimant for 100 per cent permanent loss of use of the left hand and 100 per cent permanent loss of vision of the right eye in accordance with an award of the State Industrial Board, dated May 9, 1928. The last payment of compensation for these injuries was made on July 31, 1933, which paid such compensation to September 6, 1933. During the early part of 1936 an application to reopen and to further consider the claim was made on the ground that the claimant was suffering a permanent total disability. Subsequently the case was reopened, further hearings held, and the award made from which the present appeal has been taken. On this appeal the carrier contends that the award should be made against the Special Fund pursuant to the provisions of section 25-a of the Workmen’s Compensation Law. The State Industrial Board held that because three years had not expired [794]*794from the time of the last payment of compensation when an application for reopening of the case was made that the provisions of section 25-a are not' applicable. In view of the fact that compensation was actually being paid claimant on April 24, 1933, the case was an open one on that date within the meaning of the Workmen’s Compensation Law. The provisions of section 25-a are not applicable, and the award was properly made. Award affirmed, with costs to the State Industrial Board. Hill, P. J., Crapser, Bliss and Heffeman, JJ., concur; Rhodes, J., dissents on the ground that the award should be made against the Special Fund, as provided by section 25-a of the Workmen’s Compensation Law.

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'The State Insurance Fund has appealed from an award made by the State Industrial Board in favor of claimant for permanent total disability. The employer was engaged in the mining and ore business and claimant was employed by it as a blaster and trackman. On August 4, 1925, while engaged in his regular occupation he received injuries because of an explosion of dynamite as a result of which he suffered permanent disability. Compensation was paid to claimant for 100 per cent permanent loss of use of the left hand and 100 per cent permanent loss of vision of the right eye in accordance with an award of the State Industrial Board, dated May 9, 1928. The last payment of compensation for these injuries was made on July 31, 1933, which paid such compensation to September 6, 1933. During the early part of 1936 an application to reopen and to further consider the claim was made on the ground that the claimant was suffering a permanent total disability. Subsequently the case was reopened, further hearings held, and the award made from which the present appeal has been taken. On this appeal the carrier contends that the award should be made against the Special Fund pursuant to the provisions of section 25-a of the Workmen’s Compensation Law. The State Industrial Board held that because three years had not expired [794]*794from the time of the last payment of compensation when an application for reopening of the case was made that the provisions of section 25-a are not' applicable. In view of the fact that compensation was actually being paid claimant on April 24, 1933, the case was an open one on that date within the meaning of the Workmen’s Compensation Law. The provisions of section 25-a are not applicable, and the award was properly made. Award affirmed, with costs to the State Industrial Board. Hill, P. J., Crapser, Bliss and Heffeman, JJ., concur; Rhodes, J., dissents on the ground that the award should be made against the Special Fund, as provided by section 25-a of the Workmen’s Compensation Law.

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Bluebook (online)

254 A.D. 793, 4 N.Y.S.2d 204, 1938 N.Y. App. Div. LEXIS 7633, Counsel Stack Legal Research, https://law.counselstack.com/opinion/claim-of-neuman-v-north-river-garnet-co-nyappdiv-1938.