Opinion
January 25, 1971
In a proceeding to obtain an order approving a compromise of plaintiff's third-party negligence action to recover damages for injuries incurred in the course of his employment on September 3, 1963 (Workmen's Compensation Law, § 29, subd. 5), the State Insurance Fund, insurance carrier for plaintiff's employer, appeals from so much of an order of the Supreme Court, Kings County, dated March 20, 1970, as, after a hearing, declared that certain moneys advanced by appellant, as benefits awarded by the Workmen's Compensation Board to plaintiff, did not constitute a lien on plaintiff's recovery in the action. Order reversed insofar as appealed from and proceeding remanded to the Trial Term for (1) a further hearing on the issue of whether the Workmen's Compensation Board determined that plaintiff's hernia injury was related to his 1963 accident, (2) a new decision on that issue and (3) the making of an amended order in accordance with such new decision. Costs of the appeal are awarded to abide the event of the new hearing. On the present record, it appears that, while plaintiff testified he first was aware of the hernia condition in 1969, there was likewise some evidence that in a "notice of decision" of the Workmen's Compensation Board, dated January 26, 1970, which included an award for the period of plaintiff's disability after surgery for the hernia on June 11, 1969, the board noted that plaintiff's claim accrued from "Date of Accident: 9 3 63". Under the statute, the decision of the board is final "as to all questions of fact" and likewise "as to all questions of law", unless, as to the latter, there is an appeal (Workmen's Compensation Law, §§ 20, 23). At bar, no appeal was apparently taken from the decision of the board. Under these circumstances, the learned Special Term was not free to find, as it did, that plaintiff's hernia operation on June 11, 1969, was not causally related to his injury of September 3, 1963. Neither was it free to conclude that, therefore, the moneys advanced by appellant are not a lien on the recovery in this action, since the statute accords to appellant a lien on plaintiff's recovery "to the extent of the total compensation awarded" (Workmen's Compensation Law, § 29, subd. 1). It is true that plaintiff put in issue the authenticity of the "notice of decision" because the paper produced was not an official document or a duly certified copy of such a document. However, this technical position on an item of evidence should not have served to determine the substantive question of whether an award for plaintiff's hernia condition, in fact and in law, had actually been rendered. It is assumed that on the new hearing proper evidence of the "notice of decision" in issue will be supplied. Rabin, P.J., Shapiro, Christ and Benjamin, JJ., concur.