Trautman v. Savin Copy Products

Appellate Division of the Supreme Court of New York

Trautman v. Savin Copy Products

200 A.D.2d 790, 606 N.Y.S.2d 458, 1994 N.Y. App. Div. LEXIS 41

Appellate Division of the Supreme Court of the State of New York·Decided January 6, 1994·Published·Cited by 1 cases

Opinion

—Mercure, J.

Appeals from a decision and amended decision of the Workers’ Compensation Board, filed September 10, 1991 and July 29, 1992, which directed that the award of workers’ compensation benefits be paid by the Special Fund for Reopened Cases.

The only issue that need be determined on these appeals is whether the finding of the Workers’ Compensation Board that the February 11, 1988 report of Mihai Dimancescu was not filed with the Workers’ Compensation Board within seven years of claimant’s January 8, 1982 accident (see, Workers’ Compensation Law § 25-a [1]) was unreasonable. In view of the absence of any probative evidence that the report was filed with the Board, we answer the question in the negative and accordingly affirm. Notably, because no evidence was adduced as to Dimancescu’s office practice and procedure regarding mailing, no presumption of delivery arose (compare, Bossuk v Steinberg, 58 NY2d 916, 919; Matter of Allen v Bausch & Lomb, 130 AD2d 802, 803). Although not necessary for our determination, we also agree with the Board’s determination that the report failed to state a change in condition upon which compensation could be awarded in any event (see, Matter of Pucser v Allegheny Ludlum Steel Corp., 45 AD2d 798). The remaining contentions of the Special Fund for Reopened Cases have been considered and rejected.

Cardona, P. J., Mikoll, Crew III and Yesawich Jr., JJ., concur. Ordered that the decision and amended decision are affirmed, with costs.

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—Mercure, J.

Appeals from a decision and amended decision of the Workers’ Compensation Board, filed September 10, 1991 and July 29, 1992, which directed that the award of workers’ compensation benefits be paid by the Special Fund for Reopened Cases.

The only issue that need be determined on these appeals is whether the finding of the Workers’ Compensation Board that the February 11, 1988 report of Mihai Dimancescu was not filed with the Workers’ Compensation Board within seven years of claimant’s January 8, 1982 accident (see, Workers’ Compensation Law § 25-a [1]) was unreasonable. In view of the absence of any probative evidence that the report was filed with the Board, we answer the question in the negative and accordingly affirm. Notably, because no evidence was adduced as to Dimancescu’s office practice and procedure regarding mailing, no presumption of delivery arose (compare, Bossuk v Steinberg, 58 NY2d 916, 919; Matter of Allen v Bausch & Lomb, 130 AD2d 802, 803). Although not necessary for our determination, we also agree with the Board’s determination that the report failed to state a change in condition upon which compensation could be awarded in any event (see, Matter of Pucser v Allegheny Ludlum Steel Corp., 45 AD2d 798). The remaining contentions of the Special Fund for Reopened Cases have been considered and rejected.

Cardona, P. J., Mikoll, Crew III and Yesawich Jr., JJ., concur. Ordered that the decision and amended decision are affirmed, with costs.

Trautman v. Savin Copy Products, 200 A.D.2d 790, 606 N.Y.S.2d 458, 1994 N.Y. App. Div. LEXIS 41 (N.Y. Ct. App. 1994).

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