Opinion
December 20, 1961
Appeal from a decision of the Workmen's Compensation Board which denied as not timely the self-insured employer's application for reimbursement from the Special Disability Fund under subdivision 8 of section 15 Work. Comp. of the Workmen's Compensation Law. Claimant sustained a back injury on December 2, 1954 and was awarded compensation for over 104 weeks of temporary total disability, during which period an operation for spinal fusion was performed. On October 7, 1957 it was found that claimant had no lost time since November 13, 1956 and that he was "permanently partially disabled", and the case was then closed "until otherwise ordered by the Board." On March 7, 1958 claimant requested reopening and consideration of lost time "partially due to the condition of his permanent injury" and the case was reopened and an award made on June 5, 1958 on a finding of 33 1/3% partial disability. Appellant's claim for reimbursement was made June 15, 1959. The statute requires that such claim for reimbursement "be filed * * * prior to the final determination that the resulting disability is permanent, but in no case more than one hundred four weeks after the date of disability or death, or in the event of the reopening of a case theretofore closed, no later than the determination of permanency upon such reopening." (Workmen's Compensation Law, § 15, subd. 8, par. [f].) Although the claim was not filed prior to the determination of permanency made October 7, 1957, appellant contends that it was timely as filed "no later than the determination of permanency upon such reopening"; citing our holding in Matter of Burch v. Hawkins ( 9 A.D.2d 6, 8) that the clause concerning the event of a reopening is "independent of the preceding clauses" and "exclusive as respects the procedure in reopened cases." The language upon which appellant relies, however, must be read in the context of the variant constructions urged in that case, in which there had been no determination of permanency until after the reopening, the Workmen's Compensation Board having found that the claim, although filed before the determination of permanency, was not timely because presented more than 104 weeks after the date of reopening and the Special Disability Fund contending that the 104 weeks' limitation runs from the date of disability in all cases, whether or not reopened. There was no suggestion in our decision, nor could it logically or reasonably be held, that the questioned clause is "independent" or "exclusive" when a determination of permanency has in fact been made in the initial proceedings or otherwise prior to any subsequent reopening. In this case, for example, the original determination was final, there is no suggestion of any present permanent condition other than that found at the time and certainly no intimation whatsoever that there will be, or will be required, any "determination of permanency upon [the] reopening" which has been had. "The clear import of the statute is a final determination expressly finding [the] fact [of permanency], and until a formal determination of the nature and extent of the `resulting disability' has been made, a claim for reimbursement is timely." ( Matter of D'Amario v. Martins, 277 App. Div. 913. ) Thus, in Matter of Kaplan v. Model Iron Aluminum Corp. ( 279 App. Div. 694), cited by appellant, but not involving a reopening, the board decision upon which the Special Disability Fund relied was not complete and the claim for reimbursement was held to have been timely as filed prior to the "last, final and complete determination in regard to the relevant phases of claimant's compensable injuries and their resultant permanent partially disabling effect." The finality of the determination in this case is indisputable. Clearly, the statute does not contemplate two or more "final" determinations of identical issues, but such an anomaly is implicit in appellant's argument. Decision unanimously affirmed, with costs to respondent Special Disability Fund. Coon, J.P., Gibson, Herlihy, Reynolds and Taylor, JJ., concur.