Dingfelder v. Ann's House of Beauty

79 A.D.2d 900, 434 N.Y.S.2d 1019, 1980 N.Y. App. Div. LEXIS 14349

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 14, 1980
• Status: Published

Opinion

Motion by respondent Workers’ Compensation Board to dismiss the appeal of the employer and carrier from a decision of the board filed June 11, 1980 which (1) affirmed a referee determination discharging the Special Fund from liability upon a finding of no knowledge of a prior permanent physical impairment (Workers’ Compensation Law, § 15, subd 8), and (2) rescinded the award and restored the case to the Trial Calendar for further development of the record on the question of degree of claimant’s disability subsequent to January 13, 1976. Motion granted, without costs, and appeal dismissed. In view of the restoring of the case to the Trial Calendar for further hearings on the issue of the degree of claimant’s disability, the board’s decision is clearly nonfinal and therefore not appealable (Matter of Huffman v Lake City Contr. Corp., 74 AD2d 989). Moreover, no dispositive threshold legal issue is presented (Matter of McDowell v La Voy, 59 AD2d 995). In the event an award is ultimately made, appellants may appeal such final board determination and obtain review of the issue of knowledge under subdivision 8 of section 15 at that time (see Matter of Huffman, supra; Matter of Harris v Carborundum Co., 72 AD2d 869). Mahoney, P. J., Sweeney, Kane, Main and Mikoll, JJ., concur.