Opinion
November 18, 1942.
Appeal from State Industrial Board.
By stipulation the sole question raised on this appeal is whether the award should be made against the insurance carrier or against the special fund provided for in section 25-a Work. Comp. of the Workmen's Compensation Law (Cons. Laws, ch. 67). Claimant was injured September 29, 1933, and the last payment in the nature of compensation was made in April, 1937, when the insurance carrier provided claimant with a truss. On March 6, 1937, the attending physician filed a report with the Department of Labor and the award was made on the theory that the report so filed was an application for compensation as referred to in section 25-a and was made within seven years following the date of the accident. The Board found that this application having been made prior to the expiration of seven years, the claim was chargeable to the employer or insurance carrier and not against the special fund. By reason of the stipulation shortening the record, a letter written by claimant to the Department of Labor under date of June 7, 1941, in which a request was made that his case be reopened was omitted. Likewise, there was omitted from the record by virtue of this stipulation a memorandum of the State Industrial Board, dated July 2, 1941, which restored the case to the calendar. In the circumstances the parties should be relieved from this stipulation shortening the record, and the decision should be reversed and the matter remitted to the State Industrial Board. Decision reversed and the matter remitted to the State Industrial Board. The parties are relieved of the stipulation shortening the record. The Board is invited to consider the case having in mind the letter written by claimant on June 7, 1941, asking that his case be opened and the order signed by the chairman of the Board dated July 2, 1941, opening the case and restoring it to the calendar and such other evidence or proceedings as to the Board seems proper, without costs. Hill, P.J., Crapser, Heffernan, Schenck and Foster, JJ., concur.