Opinion
January 12, 1938.
Appeal from State Industrial Board.
Present — Hill, P.J., Rhodes, McNamee, Bliss and Heffernan, JJ.
Appellants contend that claimant was not an employee and that the Industrial Board should have permitted them to present additional testimony. On September 17, 1936, claimant sustained accidental injuries for which the award was made. Claimant's regular occupation was that of a laborer. He also did blasting. Claimant had worked for the employer on previous occasions and was paid at the rate of one dollar an hour. When he did laboring work only he received less compensation. The employer furnished the tools and materials. The employer's foreman directed claimant as to his duties and instructed him as to the work which was to be done. Appellants complain of the action of the State Industrial Board in refusing them an adjournment for the purpose of producing further proof as to whether or not claimant was an employee or an independent contractor. This question was fully litigated. The carrier's representive made no application for an adjournment in order to produce proof on this subject until long after the referee indicated that claimant was entitled to an award. The carrier's representative admitted that before filing its application for a review it had never made a request for an adjournment for the purpose of producing additional testimony to the effect that the claimant was an independent contractor. The State Industrial Board, in the exercise of its discretion, properly refused to reopen the case for that purpose. Award unanimously affirmed, with costs to the State Industrial Board.