Opinion
October 31, 1967
Appeal by the self-insured employer from a decision of the Workmen's Compensation Board holding that a medical report filed within seven years of a prior accident constituted an application to reopen a closed case and that the claim was not chargeable to respondent Special Fund for Reopened Cases under section 25-a Work. Comp. of the Workmen's Compensation Law. While employed as a nurse, claimant sustained two compensable injuries, one on June 9, 1956 and the other on May 9, 1957, in each of which she sustained a lumbo-sacral sprain. The 1956 case was closed on September 13, 1956 and the 1957 case was closed on February 19, 1959. On April 20, 1964 the board received an application to reopen signed by claimant's physician, which application had reference to both cases, and which indicated a change in condition requiring a back support. The basic question involved is whether the 1957 case was validly reopened on the claimant's physician's report. Upon the record in this case, the question must be answered in the affirmative. There was substantial evidence for the board to make a determination that her present condition was in part related to the accident when she was lifting a patient from a bath tub which occurred in 1957. The board's determination that the claimant's disability was related equally to both prior injuries was likewise proper and its finding that the 1956 case is the liability of the Special Fund and that the 1957 case is the liability of the appellant, must stand. It is well to here observe that while a physician's intent alone is not controlling, the real concern is that the report is sufficient to put the board on notice that there has been a change in condition and that the carrier's liability might be extended ( Matter of Wilson v. Pittsburgh Plate Glass Co., 15 A.D.2d 847) and, of course, the filing of a physician's report alone will serve as an application to reopen even though no formal request accompanies the report. ( Matter of Norton v. New York State Dept. of Public Works, 1 N.Y.2d 844.) Here, all the required conditions were met. Decision affirmed, with costs to the Special Fund. Herlihy, J.P., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Gabrielli, J.